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HISTORY  OF   PROCEDURE 
IN    ENGLAND. 


HISTORY  OF  PROCEDURE 
IN   ENGLAND 

FROM    THE    NORMAN     CONQUEST 


(1066 -1 204) 


BY 

MELVILLE    MADISON    BIGELOW,    Ph.D. 

Harvard  Univcrsiiy 


BOSTON 
LITTLE,    BROWN,    AND    COMPANY 

1880 


Copyrtflht  bu 
MELVILLE    M.    BIGELOW, 


CHARI.nS    DICKKNS    AND    KVAKS,    CRVSTAI,    PALACE    PRESS; 


In  line  4.  note,  p.  224,  for  "  same  century  *'  read  "  next  century." 

To  the  Norse  names  in  "  Tliiug  "  on  p.  13,  may  be  added  "  Thing- 
wal "  in  Yorkshire.     1  Whitby  Chart.,  p.  118  (Atkinson). 


PREFACE. 


Adjective  law  deals  with  the  courts  and  with  the  conduct  of 
causes ;  and  writers  on  the  Anglo-Norman  period,  especially 
the  constitutional  historians,  have  written  of  both  of  these 
subjects.  But  those  who  have  heretofore  written  of  the 
courts  have  presented  only  what  may  be  called  the  layman's 
view.  To  complete  the  subject  with  the  lawyer's  side 
required,  it  was  conceived,  a  fresh  examination  of  the  whole 
subject.  The  hope  is  indulged  that,  in  the  result,  some 
service  may  have  been  rendered  as  well  to  the  student  of 
general  constitutional  history  as  to  the  student  of  the  growth 
of  a  special  system  of  law. 

The  constitutional  historians  have  had  something  to  say 
also  of  the  conduct  of  causes  in  Norman  times  ;  but  the  same 
observation  is  to  be  made  as  before.  They  have  written  for 
laymen  ;  or  rather,  constitutional  history  is  not  concerned 
with  technical  processes  of  law,  and  the  conduct  of  causes  has 
therefore  fallen  but  partially  within  their  province.  As  to 
German  scholarship,  that,  in  recent  times,  since  the  bringing 
to  light  of  the  mass  of  materials  now  available  to  all,  has  been 
directed  to  the  elucidation  of  Germanic  procedure,  broadly, 
as  a  great  branch  of  remedial  law,  developed  and  developing, 
and  not  to  the  conduct  of  causes  in  England.  The  present 
work,  therefore,  occupies  new  ground  in  this  particular  also. 


vi  PREFACE. 

It  is  hardly  necessary  to  justify  the  profusencss  of  illus- 
tration in  that  part  of  the  book  which  treats  of  the  conduct 
of  causes.  It  is  difficult  at  best  to  realise  the  methods 
employed  seven  and  eight  centuries  ago  :  the  dry  statement 
of  the  practice  of  such  remote  times  would  be  ahnost  use- 
less. The  author's  purpose  has  been  to  bring  the  ancient 
methods  of  the  courts  home  to  the  reader,  and  thus  make 
his  undertaking  as  far  as  possible  a  fitting  success. 

This  would  be  enough  for  the  author  to  say  in  his  own 
behalf;  and  he  will  only  add  that  the  Appendix  contains, 
after  some  records  specially  referred  to  in  the  text,  a  consider- 
able collection  of  Norman  writs  and  charters  relating  to 
litigation  in  the  eleventh  and  twelfth  centuries  never  before 
printed.  These  will  be  found  to  cast  a  strong  cross-light 
upon  much  of  the  text,  and  to  furnish  invaluable  aid  to 
further  study.  They  are  the  complement  of  the  writer's 
collection  in  Placita  Anglo-Normannica,  and  are  designed, 
with  that  collection,  to  furnish  the  student  with  the  best 
attainable  materials  for  an  exposition  of  the  law  books  and 
court  rolls  of  the  Anglo-Norman  period.  The  last  of  the 
records  in  the  Appendix  is  worthy  of  special  notice. 

Oxford  :  August  ind,   1880. 


CONTENTS, 


CHAPTER  I. 

PAGE 

Principles  of  Criticism        i 


CHAPTER   II. 
The  Danelag      8 

CHAPTER    III. 
The  Courts        19 

CHAPTER   IV. 
The  Writ  Process       147 

CHAPTER  V. 
Distraint 201 

CHAPTER  VL 
Summons 217 

CHAPTER  VII. 
The  Issue  Term  229 

CHAPTER  VIII. 
The  Medial  Judgment  , 288 


CONTENTS. 


CHAPTER  IX. 

PAGE 

The  Tkial  Term  301 


CHAPTER  X. 

The  Final  Judgment 341 

APPENDIX         353 

INDEX 403 


HISTORY    OF    PROCEDURE. 


CHAPTER  I. 

PRINCIPLES    OF    CRITICISM. 

Materials  relating  to  litigation  on  English  soil  are  insuf- 
ficient to  afford  a  complete  view  of  the  history  of  procedure 
during  the  Norman  period.  The  substantial  features  of  the 
procedure  of  that  time,  at  least  for  that  part  of  England 
lying  South  of  Watling  Street,  may  indeed  be  made  out  from 
English  sources.  This  is  fortunate,  for  English  materials  are 
alone  decisive  as  to  procedure  in  England.  But  English 
materials,  unfortunately,  often  fail  in  respect  of  interesting 
and  important  details  ;  such,  for  instance,  as  the  pleadings  in 
actions  for  disseisin  "injuste  et  sine  judicio,"  prior  to  the 
reign  of  Henry  the  Second.  Can  these  lacuncs  to  any  con- 
siderable extent  be  reliably  supplied  ;  and,  if  so,  how  .'' ' 

For  supplying  the  want  of  material  as  to  parts  of  the 
procedure  in  the  popular  courts,  the  most  natural  and  reason- 
able course  is  to  turn  to  the  records  of  the  pre-Norman 
period.  The  ancient  procedure  there  ran  its  course  with 
little  interruption — certainly  with  no  sudden  change — during 
the    Norman    period.      During   the   time    of  the    Conqueror 

'  It  will  not  be  material  if  some  of  the  groimds  of  criticism  to  be  stated  cannot 
at  present  be  availed  of :  it  is  important  to  set  them  all  out  for  completeness,  and 
possibly  for  future  use. 

B. 


2  HISTORY   OF   PROCEDURE. 

and  of  his  sons  Rufus  and  Hcniy,  at  all  events,  the  Anglo- 
Saxon  sources  arc  safe  guides  to  follow ;  safer  far,  certainly, 
than  any  other.  The  modification  of  the  ancient  pro- 
cedure had  been  next  to  nothing  in  the  eleventh  century, 
and  it  was  but  slight  during  the  reign  of  Henry  the  First. 
The  ordeal  probably  declined  in  this  reign  as  a  naode  of 
trial  in  civil  cases,  while  the  Norman  duel  correspondingly 
gained  ground.  The  ordeal  \'irtually  disappears  for  civil 
purposes  in  the  reign  of  Henry  the  Second.  Compurgation 
and  trial  by  party-witness,  however,  continued  through  the 
greater  part  of  the  Norman  period  with  little  or  no  change. 
Trial  by  party-witness  probably  began  slowly  to  decline  by 
the  latter  half  of  the  reign  of  Henry  the  Second,  vv'hen  the 
recognitions  came  to  play  an  important  part  in  the  adminis- 
tration of  justice.  It  might  be  difficult,  if  not  impossible,  to 
prove  such  a  decline,  but  it  is  certain  that  trial  by  part}'- 
witness  did  eventually  die  out,  or  rather  became  absorbed, 
mainly  by  the  jury  trial,  partly  by  compurgation.  The  last- 
named  mode  of  trial — the  most  tenacious  of  life  of  all  the 
old  modes — remained  apparently  unaffected  until  the  Assise 
of  Clarendon,  anno  ii 66,  re-enacted  at  Northampton  ten 
years  later.  The  adoption  (or  more  likely  the  readjustment  of 
the  practice)  of  presentment  and  ordeal  by  these  assises  is 
said  to  have  had  the  effect  of  abolishing  the  practice  of  com- 
purgation in  criminal  cases  in  the  Shiremots,  though  it 
continued  in  use  in  the  many  boroughs  whose  charters 
exempted  them  from  the  jurisdiction  of  those  courts.^  Even 
these  changes  involved  no  change  in  the  mode  of  proceeding 
in  a  particular  case  over  which  the  ancient  procedure  still 
prevailed.  The  ordeal  was  still  the  ancient  ordeal,  though 
its  use  had  been  narrowed  ;  and  the  same  was  true  of 
compurgation  and  party-witness. 

'  Stubbs,  Select  Charters,  151  (2d  ed.).  See  the  case  of  Ketel,  Jocelyn 
de  Brakelond,  74  (Camden  Soc. ).  The  sxibject  will  be  referred  to  again  in 
chapters  viii.  and  ix. 


PRINCIPLES   OF   CRITICISM.  3 

The  pre-Norman  procedure  docs  not  sustain  the  same 
relation  to  the  procedure  of  the  royal  courts  of  England  after 
the  Conquest  as  it  does  to  that  of  the  popular  courts.  The 
royal  courts,  unlike  the  popular  tribunals,  were  not  connected, 
it  is  apprehended^  by  an  unbroken  continuity  with  the  courts 
of  the  ante-Norman  period.  Some  semblance  of  the  old 
Witenagemot  still  survived,  and  the  King's  Court  (in  the 
later  sense  of  the  term,  i.e.  so  far  as  it  was  in  the  eleventh 
century  distinguishable  from  the  Witenagemot)  had  perhaps 
its  counterpart  in  the  pre-Norman  Aula  Regis  and  Thegn- 
men's  Court.  But  the  royal  courts  of  justice  (the  King's 
Court  and  the  Exchequer)  of  the  Norman  period  were  in  no 
small  degree  distinct  institutions,  having  a  fresh  beginning 
with  the  reign  of  William  the  Conqueror.  Normandy  would 
then  appear  to  be  the  quarter  to  look  to  for  supplying  the 
wanting  materials  specially  relating  to  the  new  features  of  the 
royal  courts  for  the  period  under  consideration. 

This  suggestion,  however,  must  not  be  taken  in  any 
absolute  sense.  The  procedure  of  the  royal  courts  appears 
to  have  differed  little  from  that  of  the  popular  courts,  except 
in  the  general  use  of  writs  and  in  the  more  frequent  resort 
to  trial  by  recognition  and  by  inquisition.  Nor  did  the 
use  of  a  writ  imply  any  divergence  in  the  pleadings  from 
the  procedure  of  the  County,  Hundred,  and  Manorial  Courts. 
And  even  as  to  trials  by  recognition  and  by  inquisition, 
which  were  by  no  means  unfamiliar  to  the  popular  tribunals, 
though  they  were  unknown  in  England  before  the  Conquest, 
it  is  certain  that  when  there  were  pleadings  the  parties  came 
to  issue  in  no  different  manner  from  that  of  other  and 
ordinary  modes  in  the  popular  courts.  The  Anglo-Saxon 
procedure,  though  perhaps  it  cannot  be  said  to  have  passed 
on  by  unbroken  continuity  in  the  royal  courts,  w^as  followed 
by  something  just  like  it,  so  far  as  the  Anglo-Saxon  procedure 
went ;  what  was  dissimilar  lying  mainly  on  the  surface,  by 
way  of  addition. 

B  2 


4  HISTORY   OF  PROCEDURE. 

On  the  other  hand  it  must  not  be  supposed,  in  the  absence 
of  Anglo-Saxon  records,  that  the  Norman  records  furnish 
infalhble  suggestions  in  any  particular  as  to  what  prevailed 
in  England.  The  most  that  can  safely  be  affirmed  is  that 
procedure  in  Normandy  offered  general  types  of  procedure  in 
England.  When  from  the  general  type — as,  for  instance,  the 
recognitions — we  descend  to  details,  the  practice  in  Normandy 
alone  will  not  justify  an  assertion  that  the  same  details  pre- 
vailed in  England.  A  few  illustrations  will  enforce  this 
observation. 

By  the  law  of  Normandy  he  who  was  to  wage  the  duel 
was  permitted  to  hire  a  champion.  "  Dominus  pro  quo  victus 
ducllum  subiit  tenetur  eidem  solvere  pro  duello  faciendo 
precium  (\v\o^  proniisity  '  But  this  was  not  lawful  in  England 
until  finally  (in  effect)  made  so  by  statute  in  the  latter  part  of 
the  thirteenth  century.  Glanvill  says  that  hired  champions  were 
sometimes  brought  into  court,  but  adds  that  this  was  ground 
for  objection  by  the  adverse  party.^  It  should  be  remem- 
bered that  this  difference  in  practice  prevailed  in  respect  of 
an  institution  which  had  been  introduced  into  England  from 
Normandy. 

Again,  the  Norman  writ  de  feodo  et  vadio  was  a  petitory 
writ  (a  writ  for  the  trial  of  the  right  of  property)  ;  while  the 
same  writ  in  England  was  possessory.  Glanvill  says  that  if 
the  tenant  prevail  in  an  action  under  this  writ,  "  tunc  is  qui 
petit  do  cetero  nullum  habebit  inde  recuperare  nisi  per  breve 
de  recto."  ^  It  has  also  been  supposed  that  a  similar  difference 
between  the  practice  in  England  and  that  in  Normandy  pre- 
vailed as  to  the  writ  do  feodo  et  elemosina  ;  the  writ  being 
petitory  in  Normandy,  but  said  to  be  possessory  in  England.^ 
But  while  Glanvill  treats  of  the  proceeding  under  the  liead  of 


*  Somma,   part  ii.   c.   64,   §  19.      The  reputation  of  the  champions  of  Caen 
is  well  known. 

^-  Glanvill,  lib.  2,  c.  3,  §  10. 

5  II5.  lib.  13,  c.  30,  §  I.  ■»  Brunner,  Schwurg.  324. 


PRINCIPLES   OF   CRITICISE!.  5 

the  common  recognitions  (which  were  possessory),  he  says 
that  if  it  be  proved  by  the  recognition  that  tlie  tenement  is  a 
clerical  fee  it  cannot  afterwards  be  drawn  over  to  (or  treated 
as)  a  lay  fee — "  de  cetero  trahi  non  potest  ad  laicum  feodum." ' 
And  Bracton  in  the  next  century  speaks  of  the  proceeding  as 
petitory.2  One  point  of  contrast,  however,  appears  to  have 
prevailed,  that  whereas  in  Normandy  the  writ  was  avail- 
able only  to  a  tenant  against  whom  a  claim  was  set  up  that 
his  tenement  was  frankalmoign,^  in  England  either  the 
demandant  or  the  tenant  could  have  the  writ.4 

Another  and  more  striking  contrast  between  the  procedure 
of  England  and  Normandy  was  that  process  in  cases  of  dower 
in  England  was  by  the  writ  of  right  ;5  while  in  Normandy  it 
was  by  recognition.'^  Not  less  interesting  or  important  is 
the  divergence  concerning  unanimity  in  the  recognitions. 
Glanvill  directly  states  that  there  must  be  twelve  agreed 
persons  on  the  inquest  by  the  Magna  Assisa  ;7  and  his 
language  concerning  the  common  recognitions  fairly  implies 
that  unanimity  was  equally  necessary  with  them ;  at  all 
events,  he  says  nothing  to  the  contrary.  Thus,  speaking  of 
the  assise  of  mort  d'anccstor,  he  says  that  the  parties  each 
being  present,  the  case  shall  be  decided  by  the  oath  of  the 
twelve  jurors,  and  according  to  their  verdict.^  And  substan- 
tially the  same  language  is  used  of  other  recognitions.^  In 
Normandy,  however,  a  verdict  of  eleven  was  sufificient  for  the 
common  recognitions,  though  this  appears  not  to  have  been 
the  case  with  the  Magna  Assisa.i° 

This  will  suffice  to  show  that  inferences  from  usage  in 
Normandy  can  be  drawn  only  with  the  greatest  caution.  As 
has  already  been  intimated,  it  will  be  fair  to  assume  that  a 
general  type  of  trial  which  prevailed  in  Normandy  prevailed 

'  Glanvill,  lib.  13,  c.  25.  '  Brunner,  307  ;  Somma,  part  ii.  c.  36,  §  7, 

=  Bracton,  285  b.  ^  Glanvill,  lib.  2,  c.  7,  §  2. 

3  Brunner,  325.  ^  lb.  lib.  13,  c.  II,  §  13. 

■»  Glanvill,  lib.  13,  c.  23.  ?  lb.  c.  15,  §  I. 

3  lb.  lib.  6,  cc.  4,  5.  "  Brunner,  365 . 


6  HISTORY   OF   PROCEDURE. 

ill  England,  unless,  as  was  probably  the  case  with  litigation 
over  claims  of  dower,  a  usage  had  prevailed  in  England  before 
the  advent  of  the  Normans.^  Thus,  if  materials  were  wanting 
in  England  concerning  trial  by  inquisition  or  by  the  recogni- 
tions, it  would  be  safe  to  infer  the  use  of  such  procedure  as  a 
type  ;  though  it  would  not  be  safe  to  infer  the  existence  of  the 
same  details  that  were  found  in  Normandy. 

Other  evidence,  howev^er,  may  concur  with  Norman  usage 
to  make  it  probable  that  Norman  details  were  reproduced  in 
England.  Uniform  appearance  of  the  same  details  among  all 
the  Teutonic  nations — which,  however,  would  be  a  rare 
circumstance — Avould  render  it  highly  probable  that  the  same 
thing  took  place  in  English  procedure ;  though  it  should 
not  be  forgotten  that  the  universality  of  the  judicial  duel 
among  the  Teutonic  nations  of  the  Continent  did  not  prove 
its  use  in  England  before  the  Conquest,  except  possibly  as  a 
bare  survival.  Much  more  important,  however,  than  general 
continental  usage  would  be  evidence  of  usage  in  England  in 
the  thirteenth  century,  corresponding  with  or  suggesting  the 
practice  in  Normandy.  It  is  safe  to  affirm  that  nothing  was 
brought  into  England  from  beyond  the  Channel  after  the  year 
1204,  and  little,  if  anything,  for  a  third  of  a  century  before 
that  time  ;  and  whatever  therefore  may  be  found  in  England 
in  the  thirteenth  century  of  the  same  stamp  as  something 
existing  in  Normandy  in  the  twelfth  century  may  with 
tolerable  certainty  be  set  down  as  existing  in  England  at  that 
time.  Indeed,  the  procedure  in  England  of  the  first  half  of 
the  thirteenth  century  may  safely  be  invoked  alone  to  illustrate 
much  of  the  ancient  procedure  there,  and  also  the  duel  ;  but 
nothing  further. 

Again,  the   general   prevalence   on   the   Continent   of  a 


'  As  to  questions  of  dower,  these  had  been  tried  before  tlie  Conquest  by  the 
ordeal,  compurgation,  and  party-witness ;  and  afterwards  the  Normans  suceceded 
in  substituting  for  the  okl  modes  uf  trial  the  duel,  as  they  did  in  all  other  jietitory 
actions. 


PRINCIPLES   OF   CRITICISM.  7 

special  type  under  a  general  class — of  a  species  in  a  genus — 
would  make  it  highly  probable  that  that  type  was  in  use  in 
England  also,  though  the  details  of  continental  procedure 
could  not  be  relied  upon  unless  unvarying.  Thus,  it  would  be 
safe  to  assume  the  existence  in  England  of  the  inquisitio  de 
Coutume  (inquisitio  par  turbe,  des  Gewohnheitrechtes),  from 
its  general  prevalence  on  the  Continent,  even  if  there  were  no 
traces  of  it  in  modern  English  law ;  but  the  continental 
procedure  was  not  uniform  in  details,  and  the  practice  in 
Normandy  cannot  therefore  be  assumed  to  have  prevailed  in 
England. 

The  use  to  be  made  of  Norse  material  may  be  gathered 
from  the  next  chapter. 


CHAPTER   II. 


THE   DANELAG. 


There  are  indications  of  the  existence,  North  and  East  of 
Watling  Street,  so  late  as  the  twelfth  century,  if  not  later, 
of  a  more  or  less  distinct  branch  of  Teutonic  procedure.  It 
is  proposed  in  the  present  chapter  to  look  into  the  nature 
and  extent  of  these  indications.  But  it  may  be  observed  at 
the  outset  that  the  Danish-Norse  procedure  (as  the  procedure 
referred  to  will  be  called)  was  probably  a  vanishing  fact  in 
English  history  at  the  time  of  the  Conquest,  and  that  its 
extinction  was  hastened  by  the  ever-increasing  contact  with 
the  more  vigorous  institutions  and  administration  of  the  New 
Era.  The  interest  that  may  attach  to  the  subject  is  mainly  of 
an  antiquarian  nature  ;  but  it  is  none  the  less  worthy  of 
study.  If  the  Dane  law  did  once  flourish  beyond  Watling 
Street,  as  it  clearly  did  at  least  in  modified  form,  it  failed  to 
perpetuate  itself,  or  to  make  any  impression  upon  English  pro- 
cedure that  can  be  recognised  at  the  present  day.  That  is  the 
striking  fact.  Indeed,  to  show  that  the  Danish-Norse  procedure 
was  without  a  lineage  in  England,  is  both  the  purpose  and  the 
justification  of  the  present  inquiry.  To  show  this,  it  is  neces- 
sary to  examine  (i)  the  question  of  its  existence  there,  and 
(2)  its  probably  characteristic  features,  for  the  purpose  of 
satisfactory  comparison  and  judgment.     The  Norse  procedure 


THE    DANELAG.  9 

will  be  presented  for  comparison  in  future  chapters.     Danish 
procedure  was  distinctive  in  England  only  as  it  was  Norse. 

To  what  extent  Danish-Norse  procedure  prevailed  in 
England  prior  and  subsequently  to  the  Norman  Conquest 
cannot  be  stated  with  certainty.  Nor  indeed  can  it  be  stated 
with  certainty  in  what  particulars  the  procedure  of  the  Danes 
and  Norwegians  in  England  differed  from  that  of  the  West- 
Saxons  and  Angles.  The  differences  between  the  laws  of  the 
Danes  and  the  Angles  may  safely  be  assumed  to  have  been 
slight,  both  by  reason  of  the  nearness  of  their  original  homes 
across  the  German  Ocean,  and  by  reasoji  of  their  very 
intimate  relations  upon  common  ground  in  England.  There 
was  probably  a  greater  difference  between  the  West-Saxon 
and  the  Danish  laws. 

Though  Danes  and  West-Saxons  (by  which  are  here 
meant  most  of  the  inhabitants  of  South  and  South-West 
England)  by  no  means  kept  aloof  from  each  other,  but  on 
the  contrary  were  constantly  intermingling  and  taking  up 
their  abodes  in  each  other's  districts  ;  still  there  was  a  definite 
line  of  geographical  division  between  them,  within  which  the 
mass  of  the  respective  peoples  kept  themselves.  There  was 
no  such  identity  of  territorial  occupation  by  the  West-Saxons 
and  Danes  as  by  the  Angles  and  Danes.  The  mass  of  the 
West-Saxons  kept  to  the  South  and  West  of  Watling  Street, 
the  great  Roman  road  from  Dover  to  Chester,  while  the  mass 
of  the  Danes  kept  to  the  North  and  East  of  it,  in  accordance 
with  the  boundary  set  by  the  treaty  of  Alfred  and  Guthrum.^ 
This  fact,  in  connection  with  the  considerable  separation  of 
the  continental  ancestors  of  these  peoples,  would  suffice  to 
prevent  a  confident  assertion  of  sameness  of  laws  and  insti- 
tutions further  than  such  as  would    reveal  their  relation  to 

'  The  boundary  between  the  West-Saxons  and  Danes,  as  determined  by  the 
treaty  between  Alfred  and  Guthrum,  diverged  somewhat  from  Watling  Street  in 
the  South-East.  It  extended  "upon  the  Thames,  along  the  Lea  to  its  source,  then 
right  to  Bedford,  and  then  upon  the  Ouse  to  Watling  Street." — i  Ancient  Laws 
and  Inst.  153  (Svo  ed.). 


lo  HISTORY   OF    PROCEDURE. 

each  other  as  members  in  common  of  the  family  of  Teutonic 
races. 

It  is  impossible  to  arrive  at  any  clear  idea  of  the  number 
of  those  who  crossed  the  North  Sea  and  made  permanent 
settlements  in  England  ;  but  some  general  data  are  at  hand 
which  suflice  to  show  that  very  great  accessions  to  the  popu- 
lation of  the  Middle,  Eastern,  and  Northern  districts  were 
made.  The  most  striking  indication  of  the  extent  of  the 
Danish-Norwegian  settlements  in  England  is  found  in  the 
number  of  names  of  places  of  Danish  or  Norwegian  origin. 
Of  these  there  arc  said  to  be  nearly  fourteen  hundred. ^  Of 
these  fourteen  hundred  nearly  six  hundred  are  in  counties  lying 
South  of  the  Humber  ;  almost  three  hundred  being  in  the 
single  county  of  Lincoln,  about  one  hundred  and  forty  in  the 
adjoining  counties  of  Leicester  and  Northampton,  and 
upwards  of  fifty  in  the  counties  of  Norfolk  and  Suffolk. 
North  of  the  Humber  there  are  eight  hundred  local  names  of 
Danish-Norse  origin.  South  of  the  Thames  there  are  very  few. 
Of  the  nearly  six  hundred  names  above  mentioned,  almost  all 
are  thought  to  be  Danish.  Of  the  eight  hundred  North  of 
the  Humber,  nearly  three  hundred  are  probably  Norwegian. 

Now  these  localities  having  Danish-Norse  names  must 
have  been  either  new  settlements  or  old  settlements  with  new 
names.  If  the  former  were  the  case,  the  population  of  such 
places  must  at  first  at  least  have  been  entirely  Danish-Norse  ; 
and  it  is  hardly  likely  that  subsequent  accessions  were  now 
largely  from  the  South  of  England,  There  could  have  been 
no  sufficient  inducement  for  such  a  change  of  abode.  The 
continuance  of  the  foreign  names  is  some  evidence  that  no 
sweeping  immigration  from  the  South  could  have  set  in.     It  is 

'  Worsaae,  Danes  and  Northmen,  71  (London,  1852,  Iransl.).  The  figures 
of  Worsaae  appear  to  include  names  of  the  minutest  places.  According  to  the 
present  writer's  count,  the  Index  of  ancient  Domesday  for  Lincoln  has  160  local 
names  in  "by,"  52  in  "torp,"  and  14  in  "  holm  "  and  "  hou,"  a  total  of  226  of 
supposed  Danish  and  Norse  names.  These  several  numbers  agree  very  nearly 
with  the  enumeration  of  township-;  and  parishes  in  Lincolnshire  by  the  census  of 
1871  ;  the  total  being  the  same,  226. 


THE    DANE  LAG.  li 

more  reasonable  to  suppose  that  these  settlements  became  the 
abodes  of  the  new  streams  of  Northmen  that  came  to  swell 
the  population  in  those  parts  of  England. 

Many,  probably  most,  of  these  settlements  must  have  been 
new.  The  population  of  the  North-East  of  England  was  small 
until  long  after  the  Norman  Conquest  ;  and  there  was  probably 
no  lack  of  vacant  districts,  sufficiently  inviting,  for  the  new- 
comers. To  such  places,  Danish-Norse  laws  and  institutions 
must,  in  the  natural  course  of  things,  have  succeeded. 

But  the  conclusion  can  hardly  be  materially  different  if 
these  were  old  settlements  with  new  names,  as  was  certainly 
the  case  in  some  instances. i  The  change  of  name  could  have 
occurred  only  by  the  driving  out  or  supplanting  the  old  popu- 
lation by  the  new,  and  the  permanent  occupancy  of  the  loca- 
lities by  the  latter.  Now  it  is  possible  that  in  places  in  v/hich, 
without  driving  out  the  old  inhabitants,  the  new  population 
supplanted  the  old,  and  fixed  Danish  or  Norse  names  upon 
the  settlements,  the  new  population  may  soon  have  amalga- 
mated with  the  old.  Such  an  occurrence  would  be  nothing 
new.  But  it  does  not  follow  that  they  would  yield  to  the 
subject  people  their  peculiar  laws  and  usages,  especially  in  the 
regulation  of  their  own  relations  with  each  other.  To  suppose 
that  the  amalgamation,  which  certainly  did  take  place  at  length 
very  extensively,  would  be  directly  attended  with  such  a  result 
is  to  suppose  something  out  of  the  natural  course  of  things,  and 
out  of  the  range  of  experience,  and  hence  of  probability.^ 

The  evidence  of  an  extensive  and  widespread  Danish- 
Norse  population  North-East  of  Watling  Street  is  not,  how- 
ever, confined  to  names  of  places.     In  the  central  district  of 

'  Northweorthig  became  Deoraby,  i.e.  Derby,  and  Streoneshalch  became 
Whitby  ;  the  termination  "by"  being  Danish,  and  signifying  "town." 

=  The  conquering  Teutonic  peoples,  wherever  they  went,  carried  their  pro- 
cedure with  them,  even  to  Italy.  The  procedure  of  the  courts  of  France  (at  least 
of  Frankish  France)  was  distinctively  Teutonic  throughout  the  middle  ages,  though 
the  Franks  rapidly  amalgamated  with  the  Latin-speaking  Gauls,  assuming  their 
manners,  civilisation,  and  language.  The  most  striking  feature  of  Teutonic  insti- 
tutions is  Teutonic  procedure.     That  was  never  abandoned. 


12  HISTORY   OF   PROCEDURE. 

Mercia  and  in  Lincolnshire,  the  Danes  were  not  only  in  pos- 
session of  a  great  number  of  villages  and  rural  estates,  but 
they  had  also  become  masters  of  large  towns,  five  of  which 
were  particularly  distinguished  as  Danish,  namely,  Stamford, 
Leicester,  Derby,  Nottingham,  and  Lincoln  —  "The  Five 
Ikn-ghs."  These  places  belonged  to  the  Danes  as  early  as  in 
the  time  of  Alfred,  and  were  conspicuous  for  their  size,  com- 
merce, and  wealth. f  It  has  been  suggested  that  they  were 
like  a  little  separate  state,  possessed  in  common  of  their  own 
courts  of  judicature,^  and  other  peculiar  municipal  institutions. 
The  hostile  and  dangerous  neighbourhood  of  the  English 
would  compel  them  to  unite  together  as  much  as  possible  ; 
"  and  for  a  very  long  period  they  formed  the  chief  support  of 
the  Danish  power  in  England.  Protected  by  them  from  all 
attacks  from  the  South,  the  Scandinavian  settlers  were 
enabled  securely  to  continue  establishing  themselves  in  the 
more  Northern  districts."  ^ 

Besides  the  five  burghs,  the  Danish-Norse  people  were 
possessed  of  the  equally  important  town  of  Chester  and  the 
far  more  important  city  of  York  ;  and  in  these  towns  they 
exercised,  we  may  well  suppose,  a  similar  kind  of  supremacy. 
Indeed,  it  has  been  said  (perhaps  somewhat  strongly)  that  in 


'  Worsaae,  31.  "Five  towns,  Leicester,  and  lincoln,  and  Notlingham,  so 
Stamford  eke,  and  Derby,  to  Danes  were  erewhile,  under  Northmen,  by  need  con- 
strained, of  heathen  men,  in  captive  chains,  a  long  time  ;  until  again  redeemed 
them,  for  his  worthiness,  the  bulwark  of  warriors,  offspring  of  Edward,  Edmund 
king." — Anglo-Saxon  Chronicle,  anno  941.  But  the  five  burghs,  "and  all  the 
Northumbrians,"  "and  all  the  army  North  of  Watling  Street"  readily  submitted 
again  to  the  Danish  advance  under  Swegen  seventy-two  years  afterwards. — Ang.  Sax. 
Chron.  anno  1013.  This  fact,  in  connection  with  the  firm  opposition  of  Southern 
England  to  Swegen,  indicates  the  continuance  of  the  Danish  strength  beyond 
Watling  Street,  and  the  weakness  of  the  Anglo-Saxons  in  the  same  territory.  The 
same  five  towns  appear  to  be  still  under  Danish  control  and  institutions  in  the  time 
of  Domesday  {a7ino  10S5-86)  ;  at  least  the  twelve  "lawmen"  of  the  Danes  and 
the  old  confederation  there  appear. — Schmid,  Gesctzc,  Einl.  p.  52. 

-  See  I  Palgrave,  Commonwealth,  51. 

3  Worsaae,  31.  "  Die  fiinf  Burgcn  scheinen  cincn  Sliidtcbund  gebildet  zu 
haben,  der,  wenn  nicht  von  diinischcr  Bevolkerung  begriindet,  doch  schon  friih  dex* 
danischen  Herschaft  verfiel." — Schmid,  Gesetze,  Einl.  p.  51. 


THE    DANELAO.  13 

about  half  of  England  the  majority  of  the  population  was  of 
Danish  extraction,  and  was  possessed  of  Danish  laws  and 
Danish  characteristics. ' 

There  is  further  evidence  of  Danish  power  and  influence 
in  the  frequent  reference  in  the  charters  and  chronicles  to 
Danes  and  Northmen  of  high  position  in  England,  To  refer 
to  a  single  illustration,  in  a  charter  of  the  year  997,  recording 
a  confirmation  of  a  will  before  the  Witan  assembled  perhaps 
in  Essex,  it  is  said  that  thegns  were  gathered  there  from 
afar,  as  well  West-Saxons  as  Mercians,  Danes,  and  Angles  ; 
showing  that  it  was  taken  as  matter  of  course  that  Danishmen 
of  rank  should  be  present. - 

The  names  of  some  of  the  Danish-Norse  towns  are  not 
without  special  significance.  Towns  are  found  in  the  North 
and  East  of  England  with  names  composed  in  part  of  the 
word  "  Thing,"  the  Norse  name  for  court.  Thus,  in  Suffolk 
there  exists  a  hundred  called  Thingoe,  which  is  the  subject  of 
a  charter  by  Edward  the  Confessor,  sub  noin.  Thinghowe  ;^ 
and  that  this  was  a  seat  of  litigation  appears  from  the  language 
used  concerning  it.4  The  same  is  true  of  other  places  having 
the  like  name.  The  village  of  Tinghurste  in  Lincoln  (?)  is 
mentioned  in  a  concord  between  the  church  of  Lincoln  and  the 
monastery  of  St.  Albans,  anno  1162,  the  record  of  which  is 
preserved  by  Roger  de  Wendover.  "  The  present  village  of 
Thingwall  (or  the  Thing-fields)  in  Cheshire  was  a  place  of 
meeting  for  the  Thing,  and  not  only  bore  the  same  name  as 
the  old  chief  Thing  place  in  Iceland,  but  also  as  the  old 
Scandinavian  Thing  places,  '  Dingwall,'  in  the  North  of  Scot- 
land, '  Tingwall,'  in  the  Shetland  Isles,  and  '  Tynewall '  or 
'Tingwall'  in  the  Isle  of  Man."^    It  should  be  added  that  the 

'  Worsaae,  180.     Comp.  Vigfusson's  Cleasby,  Icel.  Diet.  pref. 

=  Thorpe,  Dipl.  541.  ^  lb.  p.  418. 

4  "And  ic  an the  half  nigende  hundredes  j^/Jv/c?  into  Thinghowe. " 

In  the  old  Latin  version  given  by  Thorpe,  the  language  is  "Annuo  ....  jura 
regalia  viii.  et  dimidiam //arZ/wv/w  ad  Thynghowe." — Thorpe,  Dipl.  419. 

s  \Yorsaae,  158. 


14  HISTORY   OF   PROCEDURE. 

"H listing-"  belongs  to  the  same  category. '  And  it  is  significant 
that  in  /Ethelrecl's  laws  concerning  the  five  Danish  boroughs, 
their  court  or  assembly  is  called  Burh-gethincthe,-  that  i.s, 
Burg-thing — a  term  seldom  if  ever  used  of  the  courts  of  the 
Anglo-Saxons.  The  term  "  Thing"  in  the  sense  of  a  court  is 
indeed  used  in  the  laws  of  Hlother  and  Edric  ;-5  but  these 
were  the  early  laws  of  the  Jutish  kingdom  of  Kent. 

There  were  also  in  the  Danelag,  it  is  stated,"*  certain 
larger  Thing-meetings  for  the  different  districts,  superior  to 
the  local  Things ;  and  it  is  strongly  suggested  that  the 
Ridings — or,  properly,  Trithings — of  Yorkshire  and  Lincoln- 
shire Averc  superior  jurisdictions  of  this  nature.  It  is  said  that 
in  Scandinavia,  and  particularly  in  the  South  of  Norway, 
provinces  were  divided  not  only  into  halves  and  fourths,  but 
also  into  thirds,  or  Tredinger,  perfectly  answering  to  the 
English  Trithings.  And  it  was  to  these  Tredinger  that  all 
appeals  were  carried  from  the  local  Things. 

This  last  suggestion,  however,  is  not  material.  It  is 
enough  that  there  is  found  to  be  a  very  extensive  distribution 
in  England  of  Danes  and  Norwegians,  and  that  the  name  of 
the  Norse  court  of  justice  frequently  appears.  Until  some 
evidence  is  produced  indicating  that  the  people  of  such 
localities  adopted  the  procedure  of  their  English  enemies,  we 
must  admit  the  view  of  the  advocates  of  Danish  influence  in 
England,  that  these  people  probably  observed  their  own 
peculiar  usages.^ 

Of  the  existence  of  Danish  law  in  England  from  the 
ninth  until  the  middle  of  the  twelfth  century  at  least,  there  is 
also  ample  evidence  in  the  Anglo-Saxon    codes  and  in  the 

'  York  and  Lincoln  had  "  Hustings"  ;  and  the  existence  of  a  court  in  London 
of  the  same  name  seems  to  imply  a  stronger  Danish  element  in  the  metropolis  than 
is  commonly  admitted.  The  Anglo-Saxon  word  for  "court,"  it  need  hardly  be 
said,  was  "mot,"  usually  with  a  prefix,  "gemot." 

"  Anc.  Laws,  292  (Svoed.).  ^  lb.  30.  •>  Worsaac,  158. 

5  "It  is  not  probable  that  this  condensed  and  conquering  population  [of  Danes 
and  Norwegians]  should  have  entirely  abandoned  their  ancient  laws." — i  Palgrave, 
Commonwealth,  50. 


THE    DAN i: LAG.  15 

so-called  Laws  of  Henry  the  First  (a  custumal  left  in  its 
present  form  perhaps  about  the  end  of  the  reign  of  Stephen  '), 
though  little  is  revealed  therein  concerning  the  actual  nature 
of  the  Danish  law. 

In  the  laws  made  upon  the  final  treaty  of  peace  between 
Alfred  the  Great  and  Guthrum  the  Dane  there  is  clear 
recognition  of  Danish  institutions,  and  a  total  absence  of 
attempt  to  impose  new  laws  upon  the  people  of  Guthrum. 
Norse  terms  are  constantly  used  by  the  side  of  the  English 
to  express  the  penalties  imposed  for  the  infraction  of  law. 
Where  the  English  were  to  be  liable  for  the  "wer"  or 
"  wite,"  the  Danes  were  to  be  liable  for  "  lahslit ; "  the 
evident  meaning  of  which  is,  that  the  law  of  the  Danes  fixed 
a  certain  penalty  to  tlic  same  offence,  and  that  this  penalt}', 
and  not  the  English,  was  to  be  inflicted  in  the  Danish  district. 
"  If  anyone  withhold  tithes,  let  him  pay  lahslit  among  the 
Danes,  wite  among  the  English.  If  anyone  withhold  '  Rom- 
feoh,'  let  him  pay  lahslit  among  the  Danes,  wite  among 
the  EngHsh.2  ...  If  a  lord  oblige  his  theow  to  work  on  a 
festival  day,  let  him  pay  lahslit  within  the  Danish  law,  and 
wite  among  the  English."  ^ 

In  cases  in  which  the  value  of  the  fine  is  named  the 
amount  exacted  among  the  Danes  is  given  as  well  as  that 
imposed  among  the  English,  "  If  a  mass-priest  misdirect  the 
people  about  a  festival  or  about  a  fast  let  him  pay  thirty 
shillings  among  the  English,  and  among  the  Danes  three  half 
marks."  4 

The  laws  of  Edgar  (A.D.  959-975)  provided  "that  secular 
rights  stand  among  the  Danes  with  as  good  laws  as  they 

'  Portions  of  this  collection  were  clearly  of  the  reign  of  Henry  the  First,  and 
perhaps  the  whole  was  founded  upon  some  work  of  that  reign  now  lost.  A  charter 
of  Henry,  issued  between  the  years  1108  and  11 12  (Stubbs,  Sel.  Ch.  p.  104, 
2d  ed.),  is  spoken  of  as  recent  in  the  Leges,  c.  7,  §  i. 

-  Laws  of  Alfred  and  Guthrum,  c.  6. 

J  lb.  c.  7.     See  also  Laws  of  Cnut,  Secular,  cc.  15,  47,  49. 

4  Alf,  and  Guth.  c.  l. 


.l6  HISTORY   OF   PROCEDURE. 

may  best  choose."  ^  "  Then  will  I  that,  with  the  Danes,  such 
good  laws  stand  as  they  may  best  choose,  and  as  I  have  ever 
permitted  to  them,  and  will  permit,  so  long  as  life  shall  last 
me,  for  your  fidclit}'  which  ye  have  ever  shown  me."  2 

According  to  the  custumal  called  Laws  of  Edward  the 
Confessor,  a  work  of  the  twelfth  century,  he  who  had  thirt)' 
denariatai  in  live-stock  should,  by  the  law  of  the  English, 
pay  a  penny  to  St.  Peter,  and  by  the  law  of  the  Danes  half  a 
mark.^  The  law  of  the  Danes  concerning  the  penalty  for 
injuries  to  the  great  highways  and  streams  is  also  stated  ;  and 
so  of  the  slaying  of  villeins  and  socmen,^  and  of  the  breach 
of  the  king^s  peace  given  by  his  hand  and  seal.-''  There  is 
also,  in  the  same  collection,  a  short  chapter  concerning  the 
difference  between  the  laws  of  the  Danes  and  those  of  the 
West-Saxons  concerning  forfeitures  or  fines.6  The  laws  of 
William  the  Conqueror  treat  in  detail  at  the  outset  of  the 
differences,  in  respect  of  penalties  for  breaches  of  the  king's 
peace,  between  the  Mercian  law,  the  Dane  law^,  and  the 
West-Saxon  law.7  In  the  same  collection  the  Dane  law  of 
warranty  is  referred  to  ;^  also  the  Danish  penalty  against  a 
judge  for  rendering  false  judgment  ;9  also  the  Dane  law  as  to 
contumacy.io  And  it  is  directly  stated  that  in  the  time  of 
the  Conqueror  the  law  of  the  Danes  and  Norwegians  prevailed 
in  Norfolk,  Suffolk,  and  Cambridgeshire." 

Finally,  in  the  Laws  of  Henry  the  First  the  familiar 
statement  is  reiterated  of  the  threefold  division  of  the  law  of 
England,  to  wit,  the  West-Saxon  law,  the  Mercian  law,  and 
the  Dane  law;  and  it  is  declared  that  "in  many  things  they 
differ,  but  in  many  things  they  agree."  12  And  there  are 
many  other    references    to    the    law^    of   the    Danes    in    the 

'  Suppl.  to  Edgar's  Laws,  c.  2.  ?  Laws  Wm.  L  cc.  2,  3. 

'  lb.  c.  12.  "  lb.  c.  21. 

3  Laws  of  Edw.  Conf.  c.  lo.  '  lb.  c.  39. 

■*  lb.  c.  12.  ^°  lb.  c.  42. 

5  lb.  c.  27.  "  LawsofEdw.  Con f.c.  30  (Rog.de  Hov.) 

^  lb.  c.  33.  '=  Laws  Hen.  L  c.  6,  §  2  ;  ib.  c.  9,  §  9. 


THE    DANELAG.  17 

same  custumal,  some  of  them  rcferrini;-  to  peculiarities  of 
procedure.^ 

Tlie  references  above  given  to  the  Anglo-Saxon  laws 
would  alone  have  been  ample  to  prove  the  existence  and 
authority  of  the  Danish  law  North  and  East  of  Watling 
Street,  and  would  have  rendered  the  preceding  inquiry  un- 
necessary, had  it  not  been  important  to  ascertain  the  extent 
of  Danish-Norse  occupation.  If  this  inquiry  had  led  to  the 
conclusion  that  the  Danes  and  Norwegians  had  acquired  but 
a  small  foothold,  in  a  few  scattered  settlements,  the  references 
to  the  Dane  law  v/ould  have  been  of  little  significance.  In 
such  a  case  the  Dane  law  would  have  fallen  to  the  level  of 
detached  local  customs,  such  as  prevailed  everywhere  in 
England. 

Conclusions  based  upon  this  Inquiry  must  be  cautlousl)' 
drawn.  It  must  not  be  supposed  that  pure  Danish  or  Norse 
institutions  prevailed  to  any  considerable  extent,  if  at  all.  In 
England.  Time,  separation  from  Scandinavia  by  a  great 
sea,  and  contact  with  other  Institutions  everywhere  present, 
must  have  had  a  modifying  effect.  The  Norse  procedure  did 
not,  it  seems,  exist  In  perfect  purity  (that  Is,  as  it  existed  In 
Norway)  even  in  Iceland.  Trial  by  compurgation,  in  pure 
form,  appears  not  to  have  prevailed  there  until  after  the  union 
of  Iceland  with  Norway  In  the  latter  half  of  the  thirteenth 
century.2  The  Icelandic  procedure  especially,  to  which  we 
shall  largely  refer,  can  be  safely  appealed  to  only  as  indi- 
cating, with  probability,  the  essential  features  of  the  pro- 
cedure of  the  peoples  living  North  and  East  of  Watling  Street. 
It  Is  not  safe  to  affirm  that  the  procedure  of  the  Danelag  or 
of  the  Norwegian  districts  was  more  than  a  species  of  the 
great  Northern  genus.  In  a  word,  then,  pure  Norse  procedure 
probably  never   prevailed    in   England  :    Danish-Norse   pro- 

'  Laws  Hen.  I.  c.  ir,  §  11 ;  c.  14,  §  4;  c,  34,  §§  i,  8;  c.  6^,  §§  5,  6  (piocedure), 
10  (procedure) ;  c.  70,  §§  6,  8. 

-  See  Vigfusson's  Cleasby,  Icelandic  Diet.,  Eillir  (oatli),  Kvithr  (verdict)  ; 
Viga-Glum  Saga,  transl.  by  Head,  p.  117;  Gragas,  pref.  hy  Schlegel,  p.  84. 

C 


i8  HISTORY   OF   PROCEDURE. 

cedure  probably  did  prevail  there  to  some  extent  from  the 
tenth  to  the  middle  of  the  twelfth  century ;  but  neither  left  a 
lineage.i 

'  We  close  this  inquiry  with  a  quotation  from  the  learned  dictionary  above 
cited — not,  however,  subscribing  to  the  view  that  the  modern  English  jury  is 
lineally  connected  with  the  Norse  inquest.  Nothing  is  more  certain  than  that  the 
modern  jury  is  the  outgrowth  of  the  Norman  inquisition,  which,  though  somewhat 
resembling,  is  not  the  same  thing  as,  the  Norse  inquest.  But  the  Norse  inquest, 
in  modified  form,  prevailed,  we  may  believe,  in  the  North  of  England.  "From 
the  analogy  of  the  Icelandic  customs,  it  can  be  inferred  with  certainty  that  along 
with  the  invasion  of  the  Danes  and  Norsemen  the  judgment  by  verdict  was  also 
transplanted  to  English  ground,  for  the  settlers  of  England  wei"e  kith  and  kin  to 
those  of  Iceland,  carrying  with  them  the  same  laws  and  customs  ;  lastly,  after  the 
conquest  it  became  the  law  of  the  land." — Vigf.  Cleasb.  Diet.,  Kvithr.  The  last 
clause  may  (like  the  preceding),  be  true,  but  the  implication  that  the  "judgment 
by  verdict "  was  the  A'l^rjv  verdict  is  not  true.  The  Norse  inquest  or  verdict  of 
twelve  (tolftar-kvidr),  however,  was  a  near  approach  to  the  modera  jury  ;  but 
still  it  was  not  the  modern  jury  or  its  original.  The  subject  will  be  considered 
bter,  in  the  text,  chapter  ix. 


CHAPTER    III. 

*    .  THE    COURTS. 

The  Courts  of  England  in  the  Norman  period  were  the  Wite- 
nagemot,  called  both  the  Great  Council  (Magnum  Concilium) 
and  the  King's  Court  in  the  twelfth  century,  the  Ecclesiastical 
Court,  the  (lesser)  King's  Court,  the  Exchequer,  the  County- 
Court,  the  Burghmot,  the  Hundred  or  Wapentake  Court,  the 
Manorial  Court,  and  the  Forest  Court.  There  was  no  Court 
of  Chancery  by  name  in  any  part  of  the  period.  There  was 
a  chancellor  indeed,  as  there  had  been  before ;  but  he  exer- 
cised no  jurisdiction  as  a  judge  in  equity.  He  often  sat  in 
the  superior  courts  ;  he  was  one  of  the  established  staff  of 
the  Exchequer,  and  he  constantly  sat  with  the  other  judges 
in  the  King's  Court  and  in  the  Witenagemot,  and  in  the 
twelfth  century  frequently  went  on  circuit.  But  this  was  all. 
The  nation,  however,  possessed  a  judge  in  equity  in  the  king. 
The  sovereign  frequently  acted  in  causes  which  in  modern 
times  would  be  considered  equitable,  as  will  hereafter  appear. 
The  courts  themselves,  also,  including  the  Ecclesiastical  Court, 
all  exercised  equity  jurisdiction  as  occasion  required,  and  had 
done  so  in  pre-Norman  times.  There  was  nothing  in  the 
constitution  of  the  ordinary  tribunals  of  justice,  or  in  any 
limits  set  to  their  jurisdiction  or  procedure,  which  could  have 
prevented   them  from  entertaining  equity  causes ;    and   the 

C  2 


20  HISTORY   OF   PROCEDURE. 

evidence  that  they  did  in  fact  entertain  such  causes  is  ample, 
as  will  appear  in  the  chapter  on  the  Writ  Process. 

The   Witenagetnot. 

The  Witena£]^emot  of  the  Anglo-Saxon  period  was  both 
a  legislative  and  a  judicial  body,  though  its  legislative  function 
predominated.  It  was  an  "assembly  of  the  wise  men"  of 
the  nation,  met  to  enact  laws  for,  and  look  out  for  the  general 
welfare  and  protection  of,  the  nation  at  large,  and  incidentally 
to  adjudge  upon  the  disputes  of  the  king's  thegns  and  great 
men,  cleric  and  lay.  After  the  Conquest  there  was  also  a 
gathering  from  time  to  time  of  the  king's  "wise  men"  (under 
this  and  various  other  equivalent  names),  called  as  a  body 
sometimes  the  Witenagemot,  sometimes  the  King's  Court, 
and  sometimes  (and  in  the  twelfth  century  generally)  the 
Great  Council  ;  and  this  body,  like  the  old  Witenagemot, 
transacted  both  legislative  and  judicial  business,  the  former 
predominating  over  the  latter. 

The  Anglo-Norman  Witenagemot  was  only  the  successor 
of  the  Anglo-Saxon  Witenagemot  ;  it  was  not  the  same 
thing,  either  in  constitution  or  in  independence  and  authority. 
Its  members  for  the  greater  part  of  a  century  were  Normans 
mainly ;  and  for  nearly  as  great  a  period  of  time,  they  did 
little  else,  when  acting  in  a  legislative  capacity,  than  to  register 
the  king's  will.  But  we  are  not  concerned  in  this  book  with 
that  body  as  legislators  :  we  are  concerned  with  it  only  as  a 
judicial  tribunal.  In  this  aspect,  however,  a  distinction  must 
be  marked  at  the  outset.  We  have  said  that  this  court  was 
sometimes  called  (that  is,  by  contemporary  writers)  the  King's 
Court ;  but  there  was  another  court  of  the  same  period,  often 
distinguishable,  called  also  the  King's  Court.  How  then  is  it  to 
be  determined  which  body  was  intended  when  a  writer  of  the 
time  speaks  of  a  trial  in  the  King's  Court  .-*  Sometimes, 
unfortunately,  it  is  impossible  to  determine  which  is  meant ; 
the  facts  stated  being  insufficient  to  base  a  safe  conclusion 


THE    COURTS.  21 

upon.  Sometimes,  Indeed,  the  distinction  at  best  must  have 
been  shadowy. 

The  following  generalisations  will  serve  as  a  test  for  those 
cases  in  which  sufficient  facts  are  stated  by  the  records  or 
writers,  the  term  W'itcnagemot  being  intended  to  include  the 
Great  Council  :  i.  The  great  assemblies  at  Easter,  Pentecost, 
and  Christmas,  when  "the  king  wore  his  crown,"  in  the 
language  of  the  time,  were  Witenagemots.  2.  The  same  was 
true  of  any  assembly  of  "  all  tlie  king's  great  nien  "  of  the 
kingdom,  whether  convened  in  the  interest  in  part  of  the 
church  or  not.  3.  Such  an  assembly  convened  in  the  sole 
interest  of  the  church  was  a  Great  Synod  or  synodal  Wite- 
nagemot.^  4.  An  assembly  engaged  in  the  business  of 
general  legislation  for  the  kingdom  was  a  Witenagemot. 
5.  A  court  in  which  a  great  man  of  the  church  (e.g.  the 
archbishop  of  Canterbury)  was  impleaded  or  was  accused  on 
behalf  of  the  king  was  the  Witenagemot.^  6.  A  meeting  for 
business  by  the  king's  household  and  personal  attendants  was 
the  King's  Court  as  distinguished  from  the  Witenagemot.  7.  A 
body  delegated  to  hold  "royal  pleas"  apart  from  the  king  was 
also  the  King's  Court  in  the  same  sense.  8.  The  county  as- 
sembled to  meet  the  itinerant  justices  of  the  king  in  the  latter 
half  of  the  twelfth  century,  and  earlier,  in  the  reign  of  Henry 
the  First,  was  also  the  King's  Court  in  this  sense. 

Having  thus  distinguished,  so  far  as  there  was  a  distinction, 
between  the  body  known  as  the  Witenagemot  or  Great  Council 
and  the  King's  Court  in  the  ordinary  sense  of  later  times,  it 
remains  to  ascertain  the  jurisdiction  of  the  former  body  as  a 
judicial  tribunal.  It  will  not  be  necessary,  it  may  be  remarked, 
to  treat  of  the  procedure  of  this  court,  or  of  any  of  the  lay 
courts,  separately,  as  will  be  done  in  the  case  of  the  Eccle- 
siastical Court ;  the  lay  courts  not  being  peculiar  to  each  other 
in  any  such  sense  as  they  are  different  from  the  Ecclesiastical 

'  Compare  Beornwulf  of  Mercia,  Essays  in  Ang.-Sax.  Law,  327,  and  Thorpe, 
Dipl,  70.  ~  See  {///rOf  pp.  23-25. 


22  HISTORY   OF    I'ROCEDURE. 

Court.  It  will  turn  out  indeed,  upon  examination,  that  the 
procedure  of  the  latter  court  did  not  differ  substantially  from 
that  of  the  lay  courts  ;  but  that  is  a  fact  to  be  shown. 

It  should  be  observed  at  the  outset  that  the  Witenagemot, 
and,  in  the  twelfth  century,  the  Great  Council  as  the  same 
body,  being  an  assembly  of  national  legislators,  had  the  right 
to  take  cognisance  of  any  cause  which  a  majority  (with  the 
king)  voted  to  entertain,  or  proceeded,  without  question,  to 
entertain.  The  body  had  not  yet  divided  into  two  houses, 
one  of  A\-hich  alone  possessed  judicial  functions.  But  while 
the  Witenagemot  and  the  Great  Council  had  the  right  to 
entertain  jurisdiction  of  all  causes,  it  in  fact  did  not  exercise 
such  an  authority.  It  was  an  aristocratic  body,  before  which 
men  of  mean  degree  did  not  venture  to  appear,  and  from 
which  they  did  not  venture  to  seek  favours.  They  had  their 
own  local  courts  for  obtaining  redress  or  relief,  appointed  for 
the  very  purpose.  If  indeed  it  happened  that  the  local  court 
was  unable  or  imwilling  to  do  justice  by  them,  by  reason  of 
the  rank  or  power  of  the  defendant,  or  of  the  perversity  or 
ignorance  of  the  judges,  or  of  want  of  jurisdiction,  a  remedy 
was  provided  by  enabling  the  party  to  carry  his  cause  to  some 
other  local  court  or  to  the  powerful  County  Court,  presided 
over  by  the  king's  own  officer,  the  sheriff,  and  thence,  if 
justice  were  still  unattainable,  to  the  King's  Court,  as  dis- 
tinguished from  the  Witenagemot. ^  The  latter,  as  a  judicial 
tribunal,  appears  not  to  have  been  a  court  of  appeal,  but  an 
aristocratic  court  of  original  jurisdiction  ;  all  appeals  going, 
regularly,  to  the  King's  Court  proper.  Whatever  the  Great 
Court  might  have  done,  it  appears  never  to  have  either  called 
to  itself  cases  from  other  courts  or  to  have  received  appeals 
from  judgments  rendered  in  other  courts  ;  except  perhaps 
when  sitting  as  a  Great  Synod. 

When  the  accused  was  one  of  the  king's  great  lay  barons 

'  This  drawing  cases  into  the  King's  Court  from  tlic  local  jurisdictions  will  be 
considered  later. 


THE   COURTS.  23 

the  trial,  it  is  apprehended,  \\'as  also  generally,  if  not  always, 
before  the  Witenagemot.  The  trial  of  Ralph  Breton,  earl  of 
Norfolk,  and  of  Roger  de  Breteuil,  earl  of  Hereford, ^  for  the 
Norwich  treason  to  the  Conqueror  is  stated  to  have  been  in 
the  King's  Court  ;  but  the  court  was  a  summoned  council  of 
the  king's  great  men.  The  same  appears  to  have  been  true 
of  the  court  before  which  Waltheof,  the  last  of  the  English 
earls,  was  tried  as  privy  to  the  same  treason  as  that  found 
against  the  earls  just  named  \~  but  the  record  is  not  full 
enough  to  be  decisive.  The  cases  of  Robert  Malet-'  and  of 
Robert  de  Belesme^  Avere  also  probably  before  the  Wite- 
nagemot ;  though  the  record  is  not  so  clear  as  might  be 
desired.  The  power  and  influence  of  the  defendants,  espe- 
cially of  Robert  de  Belesme,  were  such  as  to  require  the  king 
to  obtain  the  action  and  support  of  his  entire  baronage. 
Robert  de  Montfort  is  tried  before  a  summoned  assembly  of 
great  men  for  violating  his  oath  to  the  king,  Henry  the  First.-^ 
As  to  the  trial  of  Henry  of  Essex  ^  for  treason  to  Henry  the 
Second,  the  record  simply  states  that  the  accusation  was  made 
"  in  conspectu  principum  terras." 

Trials  between  the  king's  great  men,  cleric  and  lay,  were 
often  brought  before  the  Witenagemot.  Thus,  the  case  of 
Bishop  Wulfstan  v.  Archbishop  Thomas  7  was  tried  before 
the  king,  archbishop  Lanfranc,  bishops,  abbots,  earls,  and 
great  men.  Although  the  case  of  Archbishop  Lanfranc  v. 
Odo  8  at  Penenden  Heath  was  brought  before  *'  the  w^hole 
county,"  the  court  was  much  more  than  an  ordinary  County 
Court,  both  in  respect  of  its  members  and  of  the  subjects 
adjudicated  upon.  It  was  more  properly  the  Witenagemot 
of  Kent,  possibly  reminding  the  English  participants  of  the 

'  Placita  Anglo-Normannica,  li. 

-  lb.  12.  The  trial  appears  at  iDest  to  have  been  a  mockery  of  law  ;  though  it 
is  none  the  less  a  testimony  to  the  hold  which  the  requirements  of  the  law  had,  so 
soon  after  the  Conquest,  upon  the  ruling  class  even  when  seeking  the  death  of  an 
Englishman. 

3  lb.  82.  ^  lb.  83.  5  lb.  94.  t  lb.  210.  ^  lb.  2.  -^  lb.  4. 


24  HISTORY   OF   PROCEDURE. 

time  when  the  county  had  been  a  nation  of  itself,  with  its 
own  national  Legislature,  The  case  of  the  Archbishop  of 
Canterbury  v.  The  Abbot  of  Battel/  upon  a  question  of  wreck 
in  the  time  of  Stephen,  appears  to  have  been  before  the  Great 
Council,  though  it  is  said  to  have  been  tried  ''  apud  regiam 
curiam."  It  has  already  been  observed  that  spiritual  causes 
were  sometimes  tried  in  the  Witenagemot,  Finally,  it  should 
be  stated  that  Ralph  Basset  and  the  king's  thegns  held  a 
Witenagemot  in  Leicestershire  in  the  year  1124;  "and  there 
they  hanged  more  thieves  than  had  ever  before  been  hung 
within  so  short  a  time,  being  in  all  four-and-forty  men."  2 
This  is  one  of  the  latest  mentions  of  the  Witenagemot  by 
that  name.  Thereafter  it  is  the  Great  Council  or  (as  before) 
the  King's  Court.  And  the  language  which  tells  of  a  Wite- 
nagemot in  that  year  of  11 24  is  the  language  of  an  English- 
man using  the  despised  but  still,  among  the  people,  cherished 
vernacular. 

The  king's  personal  causes  were  often  tried  in  the  Witena- 
gemot, and  always,  it  is  apprehended,  when  the  defendant 
was  one  of  the  great  clergy.  It  is  hardly  to  be  conceived 
that  a  bishop,  much  less  an  archbishop,  would,  before  the 
thirteenth  century,  be  put  upon  trial  in  the  smaller  King's 
Court,  composed  as  that  usually  was  of  the  king's  own 
retainers.  It  was  "in  aula  regali,"  indeed,  that  William  the 
Conqueror  proceeded  against  his  half-brother  Odo,  Bishop  of 
Bayeux,  but  it  v/as  before  an  assembly  of  the  first  men  of  the 
kingdom  ("  congregatis  ....  primoribus  regni")^  which,  if 
the  attendance  was  general,  as  is  implied,  means  the  Witena- 
gemot. The  appeal  of  treason  against  William,  Bishop  of 
St.  Carilef,'^  is  said  to  have  taken  place  before  the  King's 
Court ;  but  the  court  consisted  of  the  king's  great  men,  the 
archbishops,  bishops,  earls,  barons,  and  officers  of  the  army. 
The  case  of  Thomas  a  Becket^  is  so  familiar  as  scarcely  to 

'  riacita  Ang. -Norm.  143.  '  Ang.-Sax.  Chron.  tmiio  1 124. 

5  Placita  Ang.-Noini.  291.  '  lb.  307.  ^  jb.  213. 


THE    COURTS.  25 

need  mention.  .'Mlhougli  the  king  calls  for  judgment  upon 
the  archbishop  on  the  ground  that  as  his  liegeman  he  had 
refused  to  stand  to  justice  in  his  court  ("  in  curia  niea 
recusat ")  ;  and  though  the  record  states  that  the  archbishop 
came  to  the  King's  Court  in  his  chapel, ^  the  court  is  the 
Magnum  Concilium. 

The  Ecclesiastical  Court. 

The  Ecclesiastical  Court  -  Avas  a  court  which  had  derived 
its  authority  and  powers  in  the  main  from  the  immemorial 
usage  of  the  church.  The  chief  object  which  it  had  in  view 
was  the  enactment  of  laws  for  the  promotion  of  the  spiritual 
welfare  of  Christians  generall}-,  of  rules  for  the  administration 
of  church  affairs  by  bishops  and  clergy,  and  for  the  discipline 
and  conduct  of  the  various  orders  of  ecclesiastics.  The 
nature  of  a  council  Avhich  had  undertaken  business  of  this 
sort  was  unmistakable.  Whether  composed  exclusively  of 
ecclesiastics  or  not,  it  was  an  Ecclesiastical  Court  in  the 
legitimate  sensc.^ 

Had  the  church  never  assumed  other  authority  than  this, 
strictly  interpreted,  there  would  be  no  difficulty  in  deciding 
whether  a  particular  court  was  clerical  or  lay.4  But  the 
Ecclesiastical  Courts  had  a  large  share  in  the  administration 
of  justice  in  the  Norman  period  (as  in  the  earliest  times), 
especially    in    criminal    causes ;     and   there    are    numerous 

'  Placita  Ang.-Norm.  212.  "  A  general  term,  used  for  convenience. 

3  In  accordance  with  this  test,  the  various  litigations  of  the  abbots  of  Battel, 
with  the  abbot  of  Marmoutier,  with  bishop  Hilary  of  Chichester,  and  with  Theo- 
bald, archbishop  of  Canterbury,  on  the  question  of  the  ecclesiastical  independence 
of  Battel  Abbey,  v.-ere  ecclesiastical  causes,  notwithstanding  the  participation  of 
laymen.     The  cases  will  be  found  in  Placita  Ang.-Norm.  pp.  14,  156-159. 

■*  Peter  Blesensis  (if  the  elder  or  younger  Peter  is  the  author  of  the  work  com- 
monly attributed  to  one  of  them),  writing  on  the  canon  law  in  the  latter  half  of  the 
twelfth  century,  says:  "Nemo,  militans  Deo,  implicat  se  negotiis  secularibus. 
Unde  non  videtur  quod  ecclesiasticus  judex  debeat  cognoscere  de  causis  secularibus  ; 
ut  de  dote,  de  successione,  de  testamentis." — C.  lo.  But  he  adds  that  the  bishop 
as  judge  might  interfere  "  incidenter,  et,  ut  generalius  dicam,  accessorie,"  but  not 
*'  principaliter." 


26  HISTORY   OF   PROCEDURE. 

records  of  the  twelfth  century  of  synods,  so  named  by 
ecclesiastics  of  the  time  who  drew  up  the  records  and  par- 
ticipated in  the  business  of  the  courts,  which  exercised 
jurisdiction  over  purely  temporal  interests,  such  as  the  title 
to  churches  and  lands.  This  raises  a  difficulty.  How  is  it 
to  be  determined,  in  cases  where  a  distinction  existed,  whether 
a  court  having  under  consideration  the  trial  of  a  matter  not 
of  a  spiritual  nature  was  clerical  or  lay  ? 

Six  broad  generalisations  may  be  made,  in  part  answer 
to  the  question,  i.  A  court  composed  entirely  of  ecclesiastics, 
to  which  laymen  had  not  been  summoned,  was  a  clerical 
court.  2.  A  court  composed  entirel}^  of  laymen,  v/hether 
ecclesiastics  had  been  summoned  or  not,  was  a  lay  court  or 
nothing.  It  was  nothing  if  it  attempted  to  make  laws  or  to 
decide  questions  of  a  spiritual  nature.  3.  A  court  convened 
by  virtue  of  the  authority  of,  and  in  conformity  with,  a 
franchise  (of  sac  and  soc)  was  a  lay  court,  though  attached 
to  a  religious  house.  4.  A  court  convened  by  the  king, 
justiciar,  earl,  sheriff,  or  other  great  man  being  a  layman,  for 
the  trial  of  a  temporal  cause,  though  affecting  the  interests  of 
the  church,  and  though  ecclesiastics  were  present^  was  a  lay 
court,  if  laymen  only  or  mainly  were  required  to  attend.  5.  A 
court  convened  for  the  trial  of  alleged  offences  or  of  disputes 
i/iUT  c/encos,  or  of  delicts  committed  by  laymen  against  the 
clergy  or  the  church, ^  was  an  ecclesiastical  court,  if  not  coming 
under  head  3  or  4,  which  would  be  rare.-  If  the  trial  was  in  a 
court  coming  under  head  3  or  4,  it  was  a  clerical  cause  in  a  lay 
court.  6.  The  ordinary  court  of  a  bishop  and  his  diocesan 
clergy  was  a  clerical  court,  though  laymen  were  permissibly 


^  Const.  Clarendon,  cc.  6,  10. 

-  The  fact  that  punishment  jjeculiar  to  tlie  cliurch  was  innictcd  in  a  pailicular 
case  did  not  necessarily  imply  that  the  Ecclesiastical  Court  had  jurisdiction  of 
trying  the  accused  party,  even  though  that  punishment  may  have  been  inflicted 
upon  a  clerk,  for  the  offence  may  have  been  committed  against  a  layman.  Laymen, 
too,  were  subject  to  the  punishments  of  the  church,  though  tried  and  adjudged 
(as  in  ordinary  cases  they  were)  in  the  lay  courts. 


THE   COURTS.  17 

present,  and  thougli  lay  causes  were  (by  consent)  brought 
before  it.'  The  only  remaining  case  is  the  difficult  one — the 
nature  of  a  court  at  which  both  ecclesiastics  and  laymen  were 
present,  or  ecclesiastics  alone,  laymen  in  either  case  having 
been  summoned  ;  the  court  not  having  been  convened  by 
virtue  of  a  franchise  or  of  a  command  of  the  king  or  other 
la}-man.  Such  a  court  must,  however,  have  been  a  clerical 
court,  though  concerned  with  the  temporalities  of  the  church. 
It  must  have  been  convened  by  an  ecclesiastic ;  and  not  having 
assembled  under  a  franchise,  it  must  have  met  by  virtue  of  the 
ancient  judicial  usage  of  the  church,  though  not,  perhaps,  for 
purposes  sanctioned  by  early  usage.  This  will  explain  how 
certain  of  the  courts  of  the  reign  of  Stephen  and  of  the  early 
part  of  the  reign  of  Henry  the  Second,  to  be  referred  to  more 
particularly  hereafter,  are  called  synods,  and  are  properly 
treated  as  Ecclesiastical  Courts  which  have  assumed  juris- 
diction belonging  to  the  lay  courts.  The  contention  which 
led  to  the  Constitutions  of  Clarendon-  was  in  all  respects  a 
real  one,  and  not  a  question  of  names  ;  for  a  clerical  court 
was  by  right  under  the  control  of  ecclesiastics. 

Difficulty  in  deciding  as  to  the  character  of  a  court  will 
still  arise  in  many  cases  because  of  the  record  failing  to  give 
sufficient  direct  indicia  by  which  to  judge.  In  such  cases  the 
date  of  the  litigation  is  worthy  of  consideration.  If  in  the  first 
third  of  the  twelfth  century  or  earlier,  or  if  in  the  last  third  of 
the  same  century,  it  was  probably  a  lay  court,  when  concerned 
with  temporal  interests.  It  is  certain,  too,  that  there  is  some 
irregularity  of  proceeding  throughout  the  Norman  period. 
But  this  irregularity  consisted  almost  always  in  the  bringing 
of  lay  causes  before  a  clerical  courts  seldom  if  ever  the 
reverse,  in  the  twelfth  century.^  Jurisdiction  in  such  cases 
was   probably   matter    of   consent,    except    in    the    time   of 

'  See  Moclbert  v.  Prior  and  Monks  of  Bath,  I'lacita  Ang. -Norm.  114. 
=  Infra,  pp.  34-37. 

'  Battel    Abbey   was   under   the   special  protection  of  the   Iving ;  wliich  fact 
explains  Abbot  Walter  v.  Bishop  of  Chichester,  Placita  Ang. -Norm.  156. 


28  HISTORY   OF   PROCEDURE. 

Stephen  and  in  the  carh'er  years  of  his  successor,  a  point  to 
be  considered  hereafter. 

The  English  ecclesiastical  assemblies,  in  Norman  as  well 
as  in  later  times,  may  be  divided  into  National,  Provincial, 
and  Diocesan  Councils.  The  former  embraced,  as  the 
.\nglo-Norman  records  sometimes  say,  "  the  whole  clergy 
of  the  kingdom,"  which  in  fact  means  only  the  superior 
clergy,  the  archbishops,  bishops,  abbots,  and  it  seems 
(perhaps  by  special  invitation)  the  more  eminent  of  the 
archdeacons,  priests,  and  deacons.  To  these  were  often 
added  the  king  and  the  greater  of  the  laity ;  the  whole 
being  presided  over  by  the  archbishop  of  Canterbury,  or 
by  the  king.  The  distinction  between  such  an  assembly  and 
the  Witenagemot,  as  we  have  elsewhere  observed,  would  be 
hard  to  state.  But  a  body  of  this  description,  though  trials 
Avere  sometimes  prosecuted  before  it,^  was  convened  mainly 
for  legislative  purposes  ;  and  we  are  not  here  specially  con- 
cerned with  it.  The  same  maybe  said  of  Provincial  Councils. 
By  these  are  now  meant  the  councils  of  the  archbishoprics, 
or  at  least  of  several  dioceses.  Such  appear  to  have  been 
composed  of  the  same  material  with  the  National  Councils, 
and  to  have  been  concerned  mostly,  though  not  exclusively,^ 
Avith  church  legislation.  The  Diocesan  Councils  are  of 
greater  interest  in  respect  of  matters  of  litigation.  These 
were  the  County  Courts  and  the  Burghmots  of  the  church, 
and  were  composed  of  the  bishop  and  his  superior  clergy,  the 
archdeacon,  abbots,  deacons,  and  sometimes  "all  the  cicrici'' 
and  the  laity.     Itis  of  these  we  are  mainly  to  speak.3 

That  these  Diocesan  Councils  are  the  original  of  what 
since  the  last  half  of  the  twelfth  century  have  been  known  as 
the  Court  Christian  ("  Curia  Christianitatis ") — t/ie  Ecclesi- 
astical Court — is  reasonably  clear ;  but  the  history  of  the 
development  of  these  councils,  and  of  the  settlement  of  their 

'  Placita  Ang.  Norm.  223,  224.  ^  See  ib.  l6r,  182-188,  189-196. 

3  See  upon  the  whole  subject  Smith,  Diet,  Christ,  Anliq.  title  Council. 


THE   COURTS.  29 

judicial  functions,  resulting  in  a  fixed  judicial  tribunal  of  the 
English  Constitution,  is  very  obscure.  It  is  not  clear,  indeed, 
that  (wholly  apart  from  procedure  in  the  strict  sense)  the 
Court  Christian  of  Glanvill  had  assumed  the  fixed  state 
which  characterised  it  in  the  thirteenth  century,  with  regular 
terms,  and  sessions  for  judicial  purposes  alone.  The  contrary 
is  altogether  probable.  It  can  only  be  affirmed  that  it  was  by 
this  time  commonly  convened  and  (in  the  bishop's  absence) 
presided  over  by  the  archdeacon,  as  the  bishop's  minister, i 
and  that  it  was  an  accompaniment  of  the  King's  Court,  and 
sat  as  its  complement  whenever  needed ;  also  that  such  a 
court  sat  in  the  counties 2  in  its  own  right,  and  in  aid  of  the 
local  courts  and  of  the  Eyre,  as  well  as  by  specially  granted 
authority.3 

The  jurisdiction  of  spiritual  causes  had  doubtless  always 
pertained  exclusively  to  the  clergy  ;  or  rather  the  clergy 
doubtless  always  had  the  right  to  exclude  the  laity  from  the 
judgment  of  spiritual  causes.^  As  matter  of  fact,  they  did 
not  usually  exercise  their  jurisdiction  over  spiritual  matters 
of  general  interest  without  the  aid,  or  at  least  the  presence, 
of  the  lay  baronage.  The  king  often,  if  not  generally,  sat  in 
and  perhaps  sometimes  presided  over  the  church  synods. 
This  was  certainly  true  when  ecclesiastical  questions  were 
brought  into  the  King's  Court  for  determination,  a  matter  of 
not  unusual  occurrence.  ^  Whether  the  king  possessed  any 
legal  voice  in  the  deliberations  of  the  synod,  apart  from  the 


^  Comp.  as  to  the  Anglo-Saxon  period,  i  Stubbs,  Const.  Hist.  233.  Glanvill 
speaks  of  the  ecclesiastical  judge,  as  though  the  Court  had  by  his  time  come 
to  consist  sometimes  of  a  single  judge.- — Lib.  4,  c.  9,  §  3  ;  lib.  10,  c.  12,  §  i.  And 
he  speaks  of  the  judge  of  the  Ecclesiastical  Court  as  the  bishop,  or  in  his  absence 
his  official,  that  is,  the  archdeacon.— Lib.  4,  c.  9,  §  i ;  c.  10,  §  i.  In  other  cases 
he  uses  the  plural,  and  quotes  a  writ  of  prohibition  addressed,  "Rex  judicibus 
illis  ecclesiasticis,  salutem." — Lib.  4,  c.  13.     See  also  the  next  writ,  c.  14. 

'  Glanvill,  lib.  4,  c.  9,  §§  I,  3  ;  Placita  Ang.-Norm.  150,  155.  3  lb.  219. 

*  Peter  Blescnsis,  cc.  16,  48,  51. 

s  See,  for  instance,  Plaid  et  transaction  en  presence  de  Henry  I.,  in  the 
Appendix. 


3,6  HISTORY   OF   PROCEDURE. 

permission  which  was  probably  ahvays  accorded  him,  may  be 
doubted  ;  and  the  doubt  is  still  stronger  concerning  the  right 
of  the  laity  generally  to  vote.^  No  doubt  the  laity  present 
had  the  right  to  insist  upon  the  clergy  limiting  themselves, 
in  their  exclusive  jurisdiction,  to  legislation  of  a  spiritual 
nature  ;  and  their  voice,  with  that  of  the  king,  must  have  been 
heard  in  the  synods  at  which  they  were  present,  in  case  of 
any  serious  attempt  on  the  part  of  the  spiritual  baronage  to 
extend  their  jurisdiction  over  matters  temporal. 

In  the  pre-Norman  (as  well  as  in  the  Norman)  period  the 
clergy  sat  also  in  temporal  causes,  having  a  voice  therein  to 
the  extent,  at  least,  of  declaring  the  canon  law,  and  of  re- 
quiring suitors  to  yield  obedience  to  the  general  law  on  pain 
of  ecclesiastical  censure.  "  The  bishops  sat  in  the  popular 
courts,"  it  is  said,  "  as  they  sat  in  the  Witenagemot,  and  in 
both  with  much  the  same  power  as  the  lay  witan."^  The 
Hundred  and  County  Courts  were  attended  as  well  by  the 
parish  priest  as  by  the  lords  of  the  locality,  the  reeve  and  the 
four  best  men  of  each  township.^  It  is  doubtful  if  the  bishop 
of  the  diocese  was  regularly  present  in  the  Hundred  ;  but 
he  was  a  member  of  the  County  Court.^  And  spiritual 
causes  appear  sometimes,  by  c'onsent  of  the  attendant  clergy, 
to  have  been  brought  before  these  lay  courts. 

In  the  reign  of  the  Conqueror  a  law  in  the  form  of  a 
charter  was  promulgated  by  the  king,  "  by  the  common 
counsel  and  advice  of  the  archbishops,  bishops,  abbots, 
and  all  the  nobles  of  the  kingdom,"  by  which  a  line  was 
drawn  between  the  judicial  powers  of  the  clergy  and  the 
laity  in  respect  of  spiritual  causes  ;  which  line,  as  the  law 
states,  had  not  been  observed,  according  to  the  canons, 
down  to  that  time.  This  law  required  that  spiritual  causes 
should  no  longer   be   tried    in  the   secular   courts.     It   thus 

'  See  I  Stubbs,  Const.  Hist.  230;    Smith,   Diet.   Christ.  Antiq.  title  Council, 
pp.  481,  482,  485. 

^  I  Stubbs,  Const.  Hist.  232.  3  lb.  103.  4  lb.  114. 


THE    COURTS. 


31 


made  mandatory  the  trial  of  purely  ecclesiastical  causes  in 
the  Ecclesiastical  Court ;  putting  an  end  to  the  irregular 
practice  ^vhich  had  prevailed  theretofore.  It  did  not,  how- 
ever, prohibit  laymen  from  sitting  in  the  clerical  courts  ;  nor 
was  it  understood  to  have  any  such  meaning.  Laymen 
continued  to  attend  those  courts,  as  before.  Archbishop 
Anselm,  for  instance,  caused  the  great  men  of  the  realm,  lay 
and  cleric,  to  be  summoned  to  an  ecclesiastical  council  at 
Winchester,  anno  1102.1  Nor  did  the  charter  profess  to 
forbid  the  trial  of  ecclesiastical  causes  in  the  royal  courts  ; 
its  language  referring  apparently  to  the  popular  courts  only. 
But  it  is  more  interesting  to  notice  that  the  clergy  were  not 
forbidden  to  attend  upon  the  lay  courts.  In  the  Laws  of 
Henry  the  First,  "  the  reeve,  priest,  and  four  best  men  of 
the  township"  still  appear  in  the  Hundred  and  County 
Courts,  as  in  the  Anglo-Saxon  period.^  In  a  word,  the  Con- 
queror's charter  was  intended  to  prevent  the  lay  courts  from 
acquiring  jurisdiction  over  spiritual  causes,  not  to  prevent 
the  clerical  courts  from  acquiring  jurisdiction  over  temporal 
causes  ;  of  which  there  was  no  danger  at  that  time.^ 

Nor  did  this  change  of  the  law  affect  the  rights  of  the 
clergy  in  their  own  courts  as  lords.  In  these  private  juris- 
dictions, attached  to  their  estates,  they  continued  to  hold 
their  secular  courts  and  to  exercise  the  same  authority  as 
that  exercised  in  the  private  courts  of  the  lay  lords  and  in 
the  Hundred  Court.  It  is  alwaj-s  to  be  remembered  that 
the  courts  granted  or  confirmed  by  the  king  to  religious 
houses  were  temporal  and  not  spiritual  courts.  No  franchise, 
it  is  apprehended,  was  ever  granted  by  a  temporal  power  for 
holding  a  clerical  court.  The  authority  of  the  church  to 
hold  courts  was  original  and  inherent. 

'  Ang. -Sax.  Chron.  anno  1102;  Eadmer,  Hist.  Nov.  67;  5  Freeman, 
Norm.  Conq.  147.     See  also  Placita  Ang. -Norm.  157-159. 

-  Laws  of  Hen.  I.  c.  7,  §§  7,  8.  Further  attention  will  be  called  to  tliis  fact 
at  a  later  stage. 

^^  The  charter  in  full  will  be  found  in  the  Appendix,  No.  i. 


32  HISTORY   OF    PROCEDURE. 

In  respect  of  the  subject-matter  of  jurisdiction  perma- 
nently exercised  by  the  Court  Christian,  this  may  comprc- 
liensively  be  stated  to  have  embraced  church  law  and  the 
cure  of  souls.  In  the  Conqueror's  charter  separating  eccle- 
siastical from  temporal  jurisdiction,  it  was  ordered  that  no 
bishop  or  archdeacon  should  further  hold  pleas  in  the  Hundred 
Court  concerning  the  laws  of  the  church  ("dc  legibus  epis- 
copalibus"),  nor  bring  causes  which  pertained  to  the  cure  of 
souls  ("ad  regimen  animarum")  to  the  judgment  of  laymen.' 

The  latter  head  came  finally,  in  the  reign  of  Stephen,  to 
include  the  punishment  (i)  of  all  offences  by  the  clergy,  of 
every  nature  ;  ^\•hile  from  the  first  it  included  the  punish- 
ment (2)  of  many  offences  committed  by  the  laity.  Then 
(3)  by  reason  of  having  the  charge  of  marriages  and  the  burial 
of  the  dead,  with  jurisdiction  of  questions  of  legitimacy  as 
pertaining  to  the  cure  of  souls,  the  Ecclesiastical  Court  always 
had  jurisdiction  over  disputes  concerning  the  estates  of  dece- 
dents, though  strangely  enough  not  over  questions  of  dower. 
In  the  reign  of  Stephen  a  great  extension  of  jurisdiction  was 
effected  in  matters  of  property  ;  the  ecclesiastical  baronage 
finding  the  only  protection  to  their  temporal  interests  to  be 
in  the  exercise  of  authority  by  their  own  court. 

With  regard  to  the  first  and  third  class  of  cases,  the  Con- 
queror's charter  had  some  connection,  perhaps,  with  results 
that  the  Conqueror  doubtless  little  anticipated.  Its  natural 
cft'ect  is  generally  believed  to  have  been  to  afford  occasion  to 
ecclesiasticism  in  England,  in  the  favourable  opportunity 
especially  of  Stephen's  reign,  to  take  and  fortify  a  position 
such  as  it  had  never  before  fully  assumed,  not  merely  of 
absolute  independence  of  the  secular  courts  over  the  criminal 
offences  of  the  clergy,  but  also  over  questions  of  the  tempo- 
ralities of  the  church.-    A  little  latitude  of  construction  of  the 

'  Comp.  Peter  Blesensis,  c.  15. 

"  In  early  times  the  clergy  had  exercised  jurisdiction  over  small  civil  claims. 
"The  Penitential  of  Theodore  contains  a  provision  that  the  bishop  shall  determine 
tlie  causes  of  the  poor  up  to  fifty  shillings,  the  king  if  the  sum  in  question  be 
greater." — I  Stubbs,  Const.  Hist.  232. 


THE    COURTS. 


33 


charter  would  make  it  include  both  of  these  cases  ;  but  the 
necessities  of  the  time  of  Stephen  were  doubtless  the  real 
justification  to  the  clergy  for  assuming  jurisdiction  over  ques- 
tions of  property.  The  same  jurisdiction  would  have  been 
assumed,  no  doubt,  without  the  Conqueror's  charter. 

Under  the  system  which  prevailed  before  the  Conquest, 
and  perhaps  until  the  reign  of  Henry  the  Second,  all  clerical 
offences,  great  and  small,  which  were  not  committed  upon 
la}'men,  were  indeed  punishable  only  by  ecclesiastical  autho- 
rity ;'  but  if  a  man  of  the  church  committed  an  injury  upon 
one  of  the  lait\',  the  punishment  of  the  offence  was  com- 
mitted to  the  secular  courts. 2  On  the  other  hand,  offences 
committed  by  la}'men  against  the  church,  such  as  the  killing 
of  a  bishop,  priest,  deacon,  or  monk,  were  atoned  for  accord- 
ing to  canonical  law.-^  Disputes  between  men  of  the  church 
were  also  to  be  settled  within  the  church.^  In  causes  con- 
cerning tithes,  the  right  of  patronage,  and  offerings,  and  causes 
between  ecclesiastics,  sa}'s  Peter  of  Blois,  "  canones  legibus 
imponunt  silentiam."-^ 

In  the  reign  of  the  Conqueror,  of  Rufus,  and  probably  of 
Henry  the  First,  jurisdiction  was  exercised  by  the  King's 
Court  over  the  conduct  of  the  highest  dignitaries  of  the 
church,  so  far  as  it  affected  the  king.6  Stephen's  arrest  of 
the  bishops  is  also  familiar.7  By  the  middle  of  the  twelfth 
century,  for  the  redress  of  criminal  offences  against  laymen, 

'  "  De  liis  qui  intra  Dscclesiam  in  gravibus  vel  in  levibus  commissis  delinquunt, 
nichil  vindictce  ad  eos  qui  foris  sunt." — Dialogue  of  Ecgbert,  c.  8  ;  Peter  Blesensis, 
c.  i6  ;  Laws  of  Hen.  I.  c.  57,  §  9. 

-  Dialogue  of  Ecgbert,  c.  8  ;  2  Anc.  Laws,  90  (Svo  ed. ). 

3  lb.  c.  12.  King  Stephen  himself  was  summoned  to  answer  before  an  Eccle- 
siastical Council  for  arresting  and  dismissing  the  bishops  in  the  year  11 39,  and 
obeyed. 

■»  Canons  of  Edgar,  c.  7  ;  2  Anc.  Laws,  247  ;  Law  of  the  Northumbrian 
Priests,  c.  I  ;  2  Anc.  Laws,  291. 

5  Peter  Blesensis,  c.  16;  ib.  cc.  48,  51. 

^  Placita  Ang.-Norm.  391,  307;  Eadmer,  Hist.  Nov.  37;  5  Freeman,  Norm. 
Conq.  94  ;  post,  p.  48. 

^  But  this  was  in  violation  of  his  oath  of  office.  The  view  of  the  clergy  may 
be  seen  in  William  of  Malmesbury,  Gest,  Reg,  anno  1 139  (pp.  500-505,  Bohn). 


34 


HISTORY   OF   PROCEDURE. 


the  temporal  courts  had  still,  indeed,  a  right  to  inflict  punish- 
ment upon  a  clerical  offender,  but  only  after  the  Ecclesiastical 
Court  had  pronounced  him  guilty,  deprived  him  of  his  order, 
and  turned  him  over  to  the  temporal  courts  as  now  virtually 
a  layman,  and  punishable  as  such  upon  the  next  offence.^  If 
the  Ecclesiastical  Court  refused  to  try  the  offender,  or  failed 
to  find  him  guilt}^  and  also  to  degrade  him  and  turn  him  over 
to  the  temporal  courts,  he  had  immunity  from  all  outside 
interference. 

This  state  of  things  existed  at  its  height  from  the 
beginning  of  the  reign  d(  Stephen-  until  the  tenth  year  of 
the  reign  of  Henry  the  Second  ;  when  at  last  the  storm  that 
tore  down  the  pretensions  of  the  church  burst  over  the  head 
of  Thomas  a  Becket,  a  storm  hastened  somewhat,  perhaps, 
by  the  personal  ill-feeling  that  arose  on  the  part  of  the  king 
from  the  moment  when^  in  the  year  1162,  upon  his  election 
as  archbishop  of  Canterbury,  a  Becket  resigned  the  chan- 
cellorship without  consulting  the  king.  The  result  was  the 
Constitutions  of  Clarendon,  a;i//o  1 164.3  From  the  very  coro- 
nation of  Stephen  until  that  time  the  clergy  of  England  were 
masters  of  the  situation,  judicial  as  well  as  administrative, 
a  period  of  twenty-nine  years. 

These  Constitutions  were,  as  they  purport,  the  result  of 
an  inquiry  into  the  customs  of  England  existing  in  the  time 
of  Henry  the  First,  grandfather  of  Henry  the  Second ;  the 
former  having  died  less  than  twenty  years  before  the  latter's 
accession  to  the  throne,  so  that  the  old  customs  might  be 

'  Roger  de  Ilovenden,  i7>ino  1167. 

^  See  Stephen's  oath  of  office  as  king,  to  which  position  he  could  not  have 
attained  without  the  support  of  the  clergy,  especially  of  his  brother,  the  papal 
legate,  Henry,  bishop  of  Winchester,  He  swore  that  the  jurisdiction  and  power 
over  beneficed  clergy,  and  over  all  persons  in  orders,  and  their  fropcrly,  and  the 
distribution  of  effects  of  the  clergy,  should  be  in  the  hands  of  the  bishops. 
William  of  Malmcsbury,  Gest.  Reg.  anno  1 136  (p.  493,  Bohn) ;  Stubbs,  Sel.  Ch.  120 
(2d  ed.).     This  is  called  his  second  charter. 

3  See  Stubbs,  Sel.  Ch.  137-140.  The  Assise  of  Clarendon  was  another  thing, 
being  two  years  later. 


THE    COURTS.  35 

easily  ascertained.  And  these  customs  of  the  first  third  of 
the  twelfth  century  were  now  to  be  renewed. ^ 

How  far  the  clerical  position  had  been  advanced  since 
these  customs  prevailed,  and  how  far,  on  the  other  hand, 
the  revulsion  now  went,  may  be  inferred  from  the  very 
first  section  (or  chapter)  of  the  Constitutions  ;  where  it  was 
deemed  necessary  to  declare,  in  respect  of  advowsons  and 
presentations  to  churches,  that  in  case  of  disputes  "between 
laymen,  or  between  laymen  and  clerks,  or  between  clerks," 
the  samesliould  be  tried  and  determined  in  the  King's  Court.2 
The  next  section  is  not  less  significant  in  declaring  that 
churches  in  the  King's  fee  should  not  be  given  in  perpetuity 
without  his  consent.  The  third  section,  however,  is  the  one 
of  special  interest. 

This  section  declared  that  clerks  accused  of  any  crime 
should  be  summoned  by  the  king's  justiciar  into  the  King's 
Court,  to  answer  there  for  whatever  the  King's  Court  should 
determine  they  ought  to  answer  there,  and  (to  answer)  in  the 
Ecclesiastical  Court  for  whatever  it  should  be  determined 
(in  the  King's  Court)  they  ought  to  answer  there ;  yet  so 
that  the  king's  justiciar  should  send  into  the  Court  of  Holy 
Church  to  see  in  what  way  the  matter  should  there  be  treated  ; 
and  if  the  particular  clerk  should  confess  or  be  convicted, 
the  church  should  not  thereafter  protect  him. 

The  sixth  section  provided  how  laymen  should  be  accused 
and  proceeded  against  in  the  Ecclesiastical  Court,  for  offences, 
it  should  seem,  committed  against  the  clergy  or  the  church. 
They  were  not  to  be  put  to  trial  on  mere  rumour.^     The 

'  It  would  be  a  great  mistake  to  suppose,  with  Phillips  (i  Englische  Rechtsg. 
162,  163  ;  2  ib.  69),  that  any  attempt  was  made  to  set  aside  the  Conqueror's 
charter  of  jurisdiction,  as  ^\•ill  be  seen  by  the  statement  of  the  Constitutions, 
iiifra. 

'  The  state  of  the  law  on  this  point  in  tlie  time  of  Stephen  will  be  seen  in  the 
cases  referred  to  hereafter,^pp.  46,  47. 

3  "Laid  non  debent  accusari  nisi  per  certos  et  legales  accusatores  at  testes  in 
prKsentia  episcopi  ita  quod  archidiaconus  non  perdat  jus  suum,  nee  quicquam 
quod  inde  habere  debeat." 

D    2 


3>'> 


HISTORY   OF   PROCEDURE. 


seventh  provided  that  no  one  who  held  of  the  king  in  chief 
should  be  excommunicated  or  his  lands  put  under  interdict 
until  the  king  should  be  consulted,  "so  that  whatever  belongs 
to  the  King's  Court  may  therein  be  settled  ;  and  the  same,  on 
the  other  hand,  of  the  Ecclesiastical  Court."  Appeals,  by 
the  eighth  section,  were  to  proceed  (in  ecclesiastical  cases) 
from  the  archdeacon  to  the  bishop,  thence  to  the  archbishop  ; 
and  if  the  latter  failed  to  do  justice  the  parties  were  then  to 
go  before  the  king,  that  by  his  writ  the  controversy  might  be 
determined  in  the  archbishop's  court,  and  not  proceed  further 
(that  is,  to  Rome)  without  the  king's  consent. 

Section  nine  is  interesting,  both  as  limiting  still  further 
the  claim  to  ecclesiastical  jurisdiction,  and  as  containing 
the  first  specific  mention  of  the  proceeding  for  determining 
whether  a  particular  fee  was  eleemosynary  or  lay ;  for  the 
effectual  carrying  out  of  which  the  writ  de  elemosina  vel 
feodo  of  Glanvill  was  fashioned. ^  The  section  declared  that 
if  a  dispute  arose  between  a  clerk  (as  plaintiff)  and  a  layman, 
or  between  a  layman  (as  plaintiff")  and  a  clerk,  about  a  tene- 
ment which  the  clerk  claimed  as  eleemosynary,  but  the  layman 
claimed  as  a  lay  fee,  it  should  be  settled  by  a  recognition 
of  twelve  lawful  men,  by  consideration  of  the  king's  chief 
justiciar,  and  before  the  justiciar  himself,  whether  it  was  an 
eleemosynary  or  a  lay  fee.  If  it  were  declared  to  be  the 
former,  the  case  should  then  be  pleaded  in  the  Ecclesiastical 
Court ;  but  if  the  latter,  then,  unless  both  should  claim  it  of 
the  same  bishop  or  baron,  the  case  should  go  to  the  King's 
Court.  If  both  claimed  of  the  same  bishop  or  baron,  the 
case  should  go  to  such  person's  (temporal)  court.- 


'  It  must  not  be  inferred,  however,  that  this  was  the  beginning  of  such 
remedies.     The  subject  will  be  considered  in  the  chapter  on  the  Writ  Process. 

-  This  section  differs  from  the  first  in  that  the  first  refers  to  a  dispute  concerning 
the  title  to  the  advowson,  while  in  this  section  the  question  referred  to  is  how  tlie 
title  is  held.  And  it  should  be  noticed  that  if  it  were  found  that  the  fee  was  clerical, 
its  administration,  with  the  disputes  relating  thereto,  was  turned  over  to  the  Ecclesias- 
tical Court.  The  guarded  language  of  the  chronicler  in  Abbot  of  Battel  v.  Alan  de 
Bellafago,  Placita  Ang.-Norm.  245,  accords,  in  reality,  witli  this. — Post,  p.  40,  n.  5. 


THE   COURTS.  37 

The  tenth  section  provided  that  any  person,  whether 
of  city,  castle,  town,  or  demesne  manor  of  tlic  king,  M'ho 
refused  to  obey  the  summons  of  the  archdeacon  or  bishop 
for  any  dehct  for  which  he  ought  to  answer  to  them,  might 
be  put  under  interdict.  Such  person  could  not  be  excom- 
municated, however,  if  the  king's  officer  would  compel  him  to 
come  to  satisfaction  ;  but  if  the  officer  failed,  then  the  bishop 
might  proceed  against  the  accused  according  to  ecclesiastical 
law.  This  section,  with  the  sixth,  is  of  interest  as  showing 
that  the  Ecclesiastical  Court  was  not  to  be  shorn  of  juris- 
diction over  offences  committed  against  the  clergy  or  the 
church  ;  for  such  must  have  been  the  delicts  referred  to. 

Other  sections  of  a  more  general  character  follow ;  the 
only  remaining  one  of  importance  to  the  present  inquiry 
being  the  fifteenth.  Not  a  little  has  been  heard  concerning 
the  attempt  of  the  Ecclesiastical  Court  to  obtain  jurisdiction 
over  the  trial  of  actions  for  the  breach  of  solemn  contracts, 
on  the  ground  that  such  acts  were  violations  of  faith,  and 
hence  sinful.  The  fifteenth  section  of  the  Constitutions  of 
Clarendon  appears  to  be  the  first  distinct  reference  to  this 
claim.  "Pleas  of  debt,"  is  its  language,  "which  are  due  by 
pledge  of  faith,  or  without  pledge  of  faith,  belong  to  the 
king's  justiciar."  ^  This  probably  referred  to  pleas  of  debt 
betw^een  laymen  or  between  a  clerk  and  a  layman.  The 
Ecclesiastical  Court  appears  to  have  retained  jurisdiction  of 
pleas  of  debt  between  the  clergy; 2  such  causes,  with  the 
complaints  generally  between  the  inferior  clergy  of  a  religious 
house,  being  tried,  perhaps,  before  the  dean  or  other  superior 
officer  of  the  establishment,  as  in  later  times. 


'  "  Placita  cle  debitis,  qua:  fide  interposita  debentur,  vel  absque  interpositionc 
fidei,  sint  in  justicia  regis." 

-  At  the  Synod  of  Wincliester,  anno  1175,  eleven  years  after  the  Constitutions, 
it  was  decreed  that  in  actions  between  clerks  for  the  recovery  of  mone)',  the  party 
who  should  be  the  loser  should  be  condemned  to  pay  the  costs.  This  was  "to 
put  a  check  upon  litigation."  The  decree  might  have  referred  to  causes  in  the 
temporal  courts,  but  that  is  not  its  natural  meaning. — Roger  de  Hovenden, 
anno  1 175. 


38  HISTORY   OF    PROCEDURE. 

The  repentance  of  the  archbishop  over  his  hasty  signature 
to  the  Constitutions,  the  mutterings  of  the  less  courageous 
bishops  who  had  barely  assented,  fearing  to  express  any  open 
disapprobation,  and  the  absolution  of  a  Beckct  from  his  oath 
by  letters  of  the  pope,  are  too  well  known  to  be  dwelt  upon. 
But  an  incident  is  given  by  Roger  de  Wendover,  writing  in  the 
thirteenth  century,  which,  if  really  subsequent  to  the  Constitu- 
tions, as  put  by  the  chronicler,  shows  that  the  king  had  at  first 
at  all  events  gained  a  substantial  victory.  Roger  tells  us  that 
in  the  same  year  the  king,  wishing  always,  as  he  asserted,  to 
punish  crimes  with  due  severity,  and  that  the  dignity  of  all 
orders  should  be  treated  fairly,  said  that  it  was  unreasonable 
that  his  justiciars  should  be  obliged  to  hand  over  clerks,  when 
convicted  of  crimes,  to  the  bishop  of  the  diocese,  without  punish- 
ment ;  and  he  decreed  that  all  clerks  taken  in  open  crime  should 
be  handed  over  to  the  bishop,  and  those  whom  their  bishops 
found  guilty  should  be  deprived  of  their  orders  in  presence  of 
his  justiciar,  and  afterwards  be  delivered  over  to  the  King's 
Court.  The  archbishop,  says  the  chronicler,  maintained  the 
opposite  opinion,  that  none  who  were  deprived  of  their  orders 
for  crime  should  receive  any  further  punishment  from  a  lay 
tribunal.!  And  this  controversy,  he  adds,  owes  its  origin  to 
Philip  dc  Broc,  a  canon  of  Bedford,  Avho,  when  arraigned  on  a 
charge  of  murder,  used  contumacious  language  against  the 
king's  justiciar  ;  which  he  was  unable  to  deny  when  brought 
before  the  archbishop,  wherefore  he  was  deprived  of  his 
prebend,  and  banished  for  two  years.2 


'  On  the  ground  of  the  maxim,  N'emo  bis  vcxari  debet  pro  mm  et  eadcm  causa. 

'  Within  a  year  after  the  Constitutions  tlie  king  claimed  and  exercised  criminal 
jurisdiction  in  the  Royal  Court  over  archbishop  a  Becket  himself. — Placita  Ang.- 
Norm.  213 — the  charge  of  peculation  made  at  the  council  of  Northampton.  But 
this  could  hardly  have  been  justified  under  the  Constitutions  ;  nor  indeed  did  the 
king  attempt  so  to  justify  it.  Thomas  pleads  a  discharge  given  on  the  day  of  his 
consecration,  and  insists  that  his  answer  shall  be  accepted.  "  Amplius,"  he  says, 
"  nolo  inde  placitare."  This  gives  to  the  king  the  opportunity  to  say  to  his  court, 
"Cite  facitc  mihi  judicium  de  iilo,  qui  homo  mens  ligius  est,  et  stare  juri  in  curia 
inca  7-eiusaf."     Compare  the  cases  of  Odo  of  Bayeux  and  William  of  St.   Carilef, 


THE    COURTS.  39 

This  account,  however,  has  not  a  little  the  appearance  of 
something  preliminary  to,  rather  than  consequent  upon,  the 
Constitutions  ;  and  the  suggestion  is  strengthened  by  the  more 
distinct  statement  of  Ralph  de  Diceto,  who,  like  Roger  de 
Wendovcr,  wrote  in  the  thirteenth  century.  In  one  short 
paragraph  the  former  tells  of  the  council  resulting  in  the 
Constitutions  ;  and  then,  without  saying,  as  Roger  has  added, 
"  in  the  same  year "  as  if  they  were  subsequent,  proceeds  to 
report  the  facts  mentioned  by  Roger.  And  instead  of  saying 
that  the  king  "  decreed  "  {dccrcint)  that  clerks  taken  in  crime, 
etc.,  Ralph  says  that  the  king  "  had  decreed  "  {dccreverat)  in 
that  way  ;  the  whole  account  as  given  by  the  latter,  including 
the  affair  of  Philip  de  Broc,  being  apparently  an  explanation 
of  the  causes  which  immediately  led  to  the  Constitutions. 

The  events  which  followed  the  recantation  of  a  Becket, 
the  murder  at  last  of  the    archbishop,    at   which   the   king 
himself  was  suspected  of  connivance,  and  the  humiliation  of 
the  king,  need  be  referred  to  only  as  indicating  the  strength 
of  the  position  which  the   church  had  acquired   during  the 
lawless  reign  of  Stephen,  and  the  greatness  of  the  struggle 
necessary  to  dislodge  it.     And  all  the  results  as  seen  in  the 
Constitutions  seemed  likely  to  be  lost  in  the  events  following 
upon  the  murder  of  the  archbishop.     But  while  the  king  was 
humiliated  to  the  last  degree   (he  is  said  to   have  literally 
submitted   to   the    stripes   of  the   church',    and    though    he 
solemnly  promised  to  abrogate  the    Constitutions,  so  far  as 
they  were  prejudicial  to  the    church,^  the  fruits  of    victory 
finally  remained  with  the  opponents  of  clerical  aggression  ; 
which,   however  justifiable    under   Stephen's    oath    of  office, 
and    in  the  perilous  circumstances  of   Stephen's  reign,  had 
in  the  reign  of  Henry  the  Second,  lost  its  justifying  motive 

Placita  Ang.-Norm.  291,  307  ;  infra,  p.  48.  The  king  stood  upon  authority, 
though  in  face  of  the  facts  his  conduct  was  outrageous  ;  and  Thomas  was  an 
archbishop  of  Canterbury,  not  a  suffragan. 

'  See  the  purgation  of  the  king,  and   the   charter  of  absolution,   Roger  de 
Hovenden,  anno  11 72. 


40  HISTORY   OF   PROCEDURE. 

of  self-preservation,  and  now  threatened  the  welfare  of  the 
nation. I 

An  examination  of  Glanvill,  who  wrote  near  the  end  of 
the  reign  of  Henry  the  Second,  and  more  than  twenty  years 
after  the  Constitutions,  will  show  that  the  king  did  not  fulfil 
his  promise,  and  that  the  victory  remained  on  the  side  of 
reform,  at  least  as  to  property  causes ;  though  for  several 
years  after  the  death  of  a  Becket  the  king's  fear  of  the  pope 
caused  him  to  yield  to  Rome  when  any  direct  attempt  was 
made  by  the  pope  or  by  his  legates  to  exercise  judicial 
authority  over  property  causes  of  the  church. 2  But  by  the 
time  of  Glanvill  the  whole  matter  of  advowsons  and  pre- 
sentations was  within  the  jurisdiction  of  the  temporal  courts, 
as  regulated  by  the  Constitutions.  Glanvill  says  that  if  a 
dispute  concern  merely  the  last  presentation,  and  the  claimant 
allege  that  he  or  one  of  his  predecessors  in  right  had  the  last 
gift  and  presentation,  the  plea  should  be  discussed  by  the 
assise  appointed  concerning  ecclesiastical  advowsons,  namely, 
the  assise  de  ultima  praesentatione.3  If  the  right  of  advow- 
son  were  the  sole  object  of  dispute,  the  case  also  went  before 
the  temporal  court  for  consideration. 4  This  statement  cor- 
responds with  the  language  of  the  first  section  of  the  Consti- 
tutions.^      But    the    most    significant   statement   of    Glanvill 

'  The  hasty  and  intemperate  proceedings,  called  laws,  instituted  upon  the 
flight  of  a  Becket,  had  but  a  temporary  effect,  and  need  not  be  here  considered. 
They  may  be  found  in  I  Phillips,  Eng.  Reichsg.  170,  171. 

-  An  example  may  be  seen  in  the  case  of  Godfrey  de  Luci  v.  Abbot  Odo,  anno 
1 1 76,  in  which  a  question  of  property  is  brought  to  trial  by  the  papal  legate 
Hugezun  before  a  synod,  as  a  matter  of  course,  though  the  validity  of  the  king's  act 
was  directly  involved  and  doubted.   The  case  will  be  found  in  the  Appendix,  No.  3. 

-'  Glanvill,  lib.  4,  c.  I  ;  lib.  13,  c.  18.  ••  Ibid. 

s  Ante,  p.  35,  Abbot  of  Battel  v.  Alan  de  Bellafago,  Placita  Ang.-Norm. 
245,  was  a  case  of  this  kind,  tried  in  the  King's  Court  about  the  year  11 70.  (It 
was  near  the  close  of  the  plaintiff's  life;  and  he  died  in  June,  1171-)  The 
chronicler  states  that  the  trial  was  without  detriment  to  ecclesiastical  law  or  dignity, 
because  the  only  question  for  the  King's  Court  was,  who  made  the  last  presentation. 
The  trial  occurred  during  the  a  Becket  difficulty  ;  and  it  was  still  thought  necessary 
for  the  clergy  to  explain  that  such  a  proceeding  in  the  King's  Court  did  not  involve 
an  attempt  by  that  court  to  determine  upon  the  mode  in  which  ecclesiastical  pro- 


THE    COURTS.  41 

occurs  in  chapter  twelve  of  the  same  book  just  cited.  It  should 
be  observed,  he  says,  that  it  sometimes  happens  that  one  clerk 
sues  another  in  the  Ecclesiastical  Court  concerning  a  church. 
Should  they,  he  continues,  derive  their  titles  through  different 
patrons,  the  Ecclesiastical  Court  may,  upon  the  demand  of 
either  patron,  be  prohibited  from  proceeding  in  the  suit  until 
it  be  ascertained  in  the  King's  Court  to  which  patron  the  ad- 
vowson  of  the  church  belongs.  A  writ  of  prohibition  follows, 
and  then  another  writ  to  be  used  in  case  of  the  refusal  of  the 
Ecclesiastical  Court  to  obey  the  first. 

Elsewhere  Glanvill  says  that  if  a  plea  of  an  ecclesiastical 
fee  arise  between  two  clerks  concerning  a  tenement  held 
in  frankalmoign,  or  if  the  tenant,  a  clerk,  hold  an  ecclesi- 
astical fee  in  frankalmoign,  whoever  may  happen  to  be  the 
demandant,  the  plea  ought  to  be  in  the  Ecclesiastical  Court, 
unless  a  recognition  should  be  demanded  whether  the  fee  be 
ecclesiastical  or  lay ;  which  recognition  must  be  in  the  King's 
Court.  I     This,  in  effect,  is  section  nine  of  the  Constitutions.  2 

The  Pipe  Rolls  of  this  time  confirm  the  statements  of 
Glanvill.  In  the  thirty-first  year  of  Henry  the  Second  (1184, 
a  little  before  Glanvill's  treatise  was  written),  Simon  de  M. 
was  found  debtor  to  the  king  in  ten  marks  for  pleading  in 
the  Court  Christian  concerning  a  lay  fee.'^  And  still  more 
explicit  and  striking  was  the  entry  that  the  prior  of  Wor- 
cester rendered  account  of  ten  marks  for  himself  holding  plea 
of  a  lay  fee  in  the  Court  Christian. 4 

Again,  in  the  case  of  an  action  brought  by  a  creditor 
against  his  debtor  for  the  recovery  of  payment  of  his  debt, 
Glanvill  says  that  upon  the  debtor's  appearance  in  court — ■ 
that  is,  in  the  King's  Court — if  the  creditor  has  neither  pledge 
nor  sureties  (from   the  debtor  for  the  debt),  nor  any  other 

perty  should  be  administered,  when  no  question  of  the  liglit  of  property  was 
involved.  Such  explanations  are  to  that  extent  an  abandonment  of  the  position  of 
a  Becket ;  while  at  the  same  time  they  fully  justify  the  king's  position. 

'  Glanvill,  lib.  12,  c.  25.  -  Ante,  p.  36. 

3  Placita  Ang.-Norm.  278.  ''  Ibid. 


42  HISTORY   OF   PROCEDURE. 

proof,  except  the  mere  faith  of  the  defendant,  this  will  not  be  , 
received  as  proof  in  the  King's  Court,  a  statement  referring 
to  the  necessity  of  making  ?i  prima  facie  case.  Glanvill  adds, 
Yet  he  may  proceed  for  the  breach  of  faith  in  the  Court 
Christian.  But,  he  continues,  though  the  ecclesiastical  judge 
may  hold  cognisance  of  such  crime,  and  either  impose  penance 
on  the  convicted  party  or  oijoiii  him  to  make  satisfaction,  yet 
as  to  pleas  of  debt  among  the  laity  or  pleas  affecting  tene- 
ments the  Court  Christian  cannot,  by  reason  of  a  lazu  of  tJie 
kingdom  (the  Constitutions  of  Clarendon),  hold  or  decide 
them  under  the  pretence  of  the  party  having  pledged  his 
faith.  I  Pleas  of  debt  owed  by  the  clergy  appear  to  be 
excepted  by  Glanvill  from  the  jurisdiction  of  the  King's 
Court.  2 

The  statement  that  the  Ecclesiastical  Court  may  enjoin 
the  debtor  to  make  satisfaction  should  be  noticed  in  passing, 
as  showing  how  that  court  might  act  as  a  court  of  equity  in 
aid  of  justice  in  cases  in  which  the  temporal  courts  could  not 
do  justice ;  3  of  which  defect  in  those  courts,  or  rather  in  the 
rules  of  evidence,  the  passage  reveals  an  instance  which  may 
fairly  be  assumed  to  be  a  type  of  other  cases.  It  is  probably 
safe  to  suggest  that  whenever  a  person  had  a  just  cause  of 
action  which,  however,  he  could  not  establish  in  the  secular 
courts  for  want  of  the  required  supporting  evidence  (evidence 
additional  to  his  own  statement),  he  could  resort  to  the 
Ecclesiastical  Court,  and,  through  the  warnings  or  the  censure, 
pains,  and  penalties  of  the  church,  obtain  specific  perform- 
ance or  compensation.  This  point  will  be  alluded  to  again 
presently. 

Only  one  short,  and  that  unsatisfactory,  book  concerning 
crimes  appears  in  Glanvill's  treatise,  the  last  one  in  it ;  and 
this  makes  no   mention  of  crimes  committed  by  the  clergy. 

'  Glanvill,  lib.  lo,  c.  12.  -  lb.  lib.  I,  c.  3,  §  I. 

3  Comp.    Peter   Blesensis,   c.    10,    that  ihe   bishop    "iJOtest    cogeic   maritum 
prestare  cautionem  de  restituenda  dole." 


THE    COURTS. 


43 


But  nothing  is  said  to  indicate  that  the  law  treated  of  was 
not  general.  There  is,  however,  a  passage  in  Roger  dc 
Hovenden,  of  the  year  1175,  some  eleven  or  twelve  }'ears 
before  Glanvill's  treatise  was  written,  and  before  the  king- 
had  fully  recovered  from  the  consequences  of  the  murder 
of  a  Becket,  in  which  we  are  told  that  the  pope's  legate 
Hugezun  "gave  permission  to  the  king  to  implead  the  clergy 
of  his  kingdom  for  offences  against  his  forests  and  taking 
venison  therein."  This  passage  shows  the  extreme  to  which 
the  king  had  at  first  been  driven  by  the  a  Becket  catas- 
trophe. It  is  probable  that  he  had  recovered  himself  by 
the  time  of  Glanvill's  book  (perhaps  anno  1186).  Glanvill's 
silence  as  to  clerical  offenders  may,  however,  indicate  a 
prudent  regard  for  the  feelings  of  the  king.  Neither  the 
Assise  of  Clarendon  {anno  1166)  nor  that  of  Northampton 
{anno  1 176)  contains  any  reference  to  crimes  committed  by 
the  clergy.  Their  language  is,  however,  general  as  to  criminal 
offences. 

Further  evidence  of  Henry's  dread  of  the  pope  for  some 
years  after  the  death  of  a  Becket  is  probably  furnished  by 
the  case  of  Henry's  son,  "the  young  king"  against  his  (the 
son's)  vice-chancellor  Adam,  anno  11 76.1  Adam  Avas  a  clerk, 
and  was  accused  before  a  lay  court  on  the  Continent  and 
found  guilty  of  treason  to  his  lord.  He  was  saved  from  the 
gallows  by  the  bishop  of  the  place,  who  asserted  that 
"  clericum  in  sacris  ordinibus  constitutum  a  laico  non  posse 
judicari."  This  indeed  was  at  Poictou  ;  but  the  king,  when 
he  heard  of  the  affair,  appears  to  have  been  displeased,  or 
more  likely  alarmed,  and  orders  the  offending  clerk  to  be 
sent  to  him.  The  order  was  obeyed,  but  not  without  the 
infliction  of  great  indignities  upon  the  prisoner,  including  the 
sending  him  to  the  king  in  irons  ;  in  which  condition  the  king 
refused  to  receive  him.     The  king  then  directs  that  Adam  be 

'  riacita  Aug. -Nonii.   314.      The  word   "vice-chancellor"  need   not  create 
surprise.     Tlie  office  was  common  at  this  time,  but  had  no  judicial  significance. 


4+  HISTORY   OF    PROCEDURE. 

given  into  the  custody  of  the  abbot  of  Hida  at  Winchester, 
"until  he  can  speak  with  his  counsel  about  the  matter." 

The  exercise  of  lay  jurisdiction  over  the  clergy  in  personain 
was,  it  is  true,  a  different  thing  from  exercising  jurisdiction 
over  disputes  of  property  claimed  by  the  church.  The 
jurisdiction  of  the  church  had  become  fortified  by  the  usage 
of  centuries  and  by  the  sanction  of  emperors,  kings,  and 
princes,  as  to  the  offences  of  the  clergy  ;  i  but  this  case  of 
the  vice-chancellor  was  an  appeal  of  treason,  jurisdiction  over 
which  class  of  cases  had  belonged,  unquestioned  in  England 
for  more  than  a  century,  to  the  court  of  the  offended  party.^ 
The  case  therefore  merely  indicates  the  temporary  subjection 
of  Henry  to  fear  of  the  pope. 

That  the  King's  Court,  or  other  lay  court,  had  exercised 
jurisdiction  over  questions  of  church  property  prior  to  the 
reign  of  Stephen,  both  before  3  and  after  the  Conquest,  the 
evidence  is  decisive ;  and  from  the  Conquest  to  Stephen  this 
jurisdiction  v\'as  substantially  exclusive.4     In  the  year  1070, 

'  See  e.g.  the  decree  of  the  emperor  Julian  anno  530.  Cod.  lib.  i,  c.  29. 
The  Constitutions  of  Clarendon  were  the  late  beginning  of  determined  revolt 
against  clerical  privilege  and  priestly  assumption  of  superiority  over  the  State. 

-  Post,  p.  48. 

'  See  the  Cases  of  Eadgar,  Essays  in  Ang.-Sax.  Law,  347,  and  Cod.  Dipl. 
1258 ;  Bishop  ^thelstan,  Thorpe,  Dipl.  375,  and  Essays,  363  ;  ^Ethelred, 
Thorpe,  271,  and  Essays,  350;  Godwine  and  Leofwine,  Thorpe,  301,  and 
Essays,  360 ;  Ealdred,  Essays,  368,  and  Cod.  Dipl.  805. 

4  This  may  not  have  been  the  case  before  the  Conquest.  Many  property 
causes  of  the  church  are  recorded  as  having  been  brought  before  synods  ;  but  it  is 
not  clear  that  these  synods  were  anything  else  than  the  Witenagemot.  See  the 
Cases  of  Offa,  Essays  in  Ang.-Sax.  Law,  316,  and  Cod.  Dipl.  164;  Archbishop 
/Ethelheard,  Essays,  317,  and  Cod.  Dipl.  1019  ;  Deneberht  and  Wulfheard, 
Essays,  320,  and  Thorpe,  Dipl.  52  ;  Beornwulf,  Essays,  323,  and  Thorpe,  67  ; 
Wulfred,  Essays,  324,  and  Thorpe,  73;  and  other  cases  in  the  Essays  following  these. 
It  is,  however,  impossible  to  affirm  that  jurisdiction  was  not  exercised  in  particular 
cases  in  any  court  by  consent  of  the  parties  ;  but  substantial  unanimity  as  to  the 
forum,  as  in  the  cases  from  the  Conquest  to  Stephen,  has  a  most  persuasive  bearing. 
As  to  clerical  jurisdiction  in  these  pre-Norman  councils,  Professor  Stubbs  says  : 
"  They  seem  also  to  have  exercised  a  friendly  jurisdiction  in  suits  for  property 
between  different  churches  ;  herein  acting  rather  as  arbitrators  than  as  judges,  and 
probably  expecting  review  or  confirmation  by  the  Folkmot  or  Witenagemot." — 
I  Const,  Hist.  231,     He  also  says  that  these  councils  were  "  scarcely  distinguish- 


THE    COURTS.  45 

at  a  great  assembly,  consisting  of  the  king,  archbisliop 
Lanfranc,  and  the  bishops,  abbots,  earls,  and  great  men  of 
the  kingdom — the  Witenagemot — bishop  Wulfstan  recovers 
church  lands  of  archbishop  Thomas  of  York.'  Not  far  from 
this  time  the  celebrated  trial  between  archbishop  Lanfranc 
and  bishop  Odo  occurs,  in  a  County  Court  at  Penenden 
Heath  ;  the  suit  being  successfully  brought  for  the  recovery 
of  lands  and  franchises  of  which  the  see  of  Canterbury 
had  been  disseised  by  Odo. 2  At  the  suit  of  the  abbot  of 
St.  Augustine,  anno  1076,  the  king  sends  a  writ  to  his  own 
justiciars  for  the  relief  of  the  plaintiff  as  to  lands  of  which 
his  church  had  been  disseised. -^  Later  in  the  same  reign 
occurs  the  well-known  case  of  Bishop  Wulfstan  v.  Abbot 
Walter,"*  in  which,  before. the  king's  justiciar  and  an  assembly 
of  "counties  and  barons,"  the  plaintiff,  as  bishop,  claims  and 
recovers  the  right  to  lands  and  various  services  from  the 
defendant  as  abbot.  About  the  same  time  occur  land  suits 
in  County  Courts  between  bishop  Odo  and  the  same  Walter.^ 
At  a  County  Court  held  at  Kenetford,  composed  of  abbots, 
sheriffs,  and  many  knights,  French  and  English,  the  abbot  of 
Ely  recovers  various  lands  and  franchises  of  which  his  church 
had  been  disseised  at  the  Conquest.^  In  the  reign  of  Rufus 
the  abbot  of  St.  Augustine  obtains  a  writ  from  the  king 
ordering  an  inquisition  as  to  the  customs  which  his  church 
claimed  in  Newington.7  In  the  same  reign,  the  monks  of 
St.  Benet  obtained  from  the  king  a  writ  requiring  an 
assembly  of  the  County  Court  of  Hants,  and  an  inquisition 
whether  the  land  of  Isham  had  paid  rent  to  the  monks  in 
the  time  of  the  king's  father.^  Near  the  beginning  of  the 
reign  of  Henry  the  First  a  writ  is  obtained  from  the  king, 
ordering  an  inquisition  as  to  lands  claimed  by  R.  of  Avranche 

able  from  tlie  separate  Wilenagemots.  All  these  councils  in  many  respects  resemble 
the  Witenagemots." — lb.  230.  "  Mixed  synods  or  rather  Witenagemots. " — Smith, 
Diet.  Christ.  Anticj.  title  Council,  p.  4S0  ;  see  also  ib.  p.  4S5. 

'  Placita  Ang.-Norm.  2.  -  Ib.  4.  ^  Ib.  13.  ^  Ib.  16. 

5  Ib.  20,  21.  ^  Ib.  23.  ^  Ib,  66.  -  Ib.  71. 


4$  HISTORY   OF   PROCEDURE. 

and  by  the  abbot  of  Abingdon. ^  About  the  same  tnne  abbot 
Faritius  recovers  judgment  in  several  cases  in  respect  of 
knight  fees,  in  the  presence,  in  one  case,  of  sheriffs,  justiciars, 
and  barons,  in  another  before  bishops  (one  being  Roger  of 
Sahsbury,  the  king's  justiciar  and  treasurer,  the  reorganiser 
of  the  Exchequer)  and  many  barons  of  the  king.^  A  few 
years  later  the  king  by  his  writ  commands  Goscelin  to  go 
into  the  Manorial  Court  of  the  abbot  of  St.  Augustine  and 
there  sue  in  respect  of  certain  land  of  the  church.-^  Abbot 
Faritius,  about  the  year  1108,  obtains  a  writ  from  the  king 
against  Robert  Maledoit,  commanding  him  to  perform 
services  due  the  abbot.''  About  the  same  time  the  king 
confirms  a  recovery  of  judgment  in  his  court  in  respect  of 
a  prebend,  the  right  over  which  was  in  dispute  between 
the  abbot  of  St.  Augustine  and  the  canons  of  St.  Martin.^ 
In  the  year  1109  abbot  Faritius  recovers  judgment  in  the 
Exchequer  as  to  a  certain  manor.^'  A  great  trial  occurred 
in  the  year  1121,  between  the  monks  of  Durham  and  the 
monks  of  York,  concerning  the  right  to  a  church,  before  an 
assembly  of  great  men,  apparently  laymen,  one,  at  least,  a 
sheriff.7 

Many  other  examples  might  be  given  of  the  reign  of 
Henry  the  First  to  the  same  effect ;  and  there  is  no  known 
record  at  variance  with  the  cases  referred  to.  The  trials  held 
in  the  Ecclesiastical  Court  will  all  be  found  to  have  been 
purely  ecclesiastical  causes,  or  causes  relating  to  offences 
inter  clericos.  Even  in  the  reign  of  Stephen  the  King's  Court 
did  not  lose  its  ancient  jurisdiction  :  the  Ecclesiastical  Court 
merely  assumed  jurisdiction  alongside  of  it,  for  the  better 
protection,  doubtless,  of  the  secular  interests  of  the  church. 
Thus,  there  is  a  record  of  a  litigation  in  the  King's  Court 
aiuio   1 1 39,  between  the  archbishop  of  Canterbury  and  the 


'  Placita  Ang.-Noim.  73.  -  lb.  75-78.  3  n,.  r)o. 

■t  lb.  97.  5  lb,  9S.  '  lb.  99,  100.  ^  lb.  117,  119. 


THE    COURTS.  47 

abbot  of  Battel  as  to  a  question  of  wreck. i  In  the  year  1 141 
there  is  a  case  of  a  writ  of  right,  commanding  the  archdeacon 
of  Canterbury  to  hear  a  cause  as  to  land  of  the  church.2  The 
following  year  there  occurred  an  inquisition  as  to  the  estate 
of  R.  P.,  deceased,  held  before  barons  and  legal  men  of  the 
church,  clerks,  and  laymen.-"^ 

On  the  other  hand,  the  first  cases,  since  the  Conquest  at 
least,  of  trials  of  questions  relating  to  church  property  in  the 
Ecclesiastical  Court  occur  in  this  reign.  There  is  a  record 
of  an  adjudication  in  the  year  1145,  in  a  public  synod  ("in 
publica  synodo  "),  of  the  trial  of  the  right  to  two  churches.'^ 
In  another  synod,  held  the  following  year,  judgment  was 
rendered  in  a  cause  between  the  monks  of  Basselcch  and 
Picot,  chaplain  of  St.  Gundley,  in  respect  of  a  certain  chapel, 
its  tithes,  and  cemetery.''  About  the  same  time  a  question  of 
the  title  to  certain  manors  was  agitated  and  decided  between 
bishop  Ascelin  and  the  monks  of  St.  Andrew  in  a  court  of 
bishops,  abbots,  "  and  other  religious  mcn.'''^  In  the  year  1 148 
an  ecclesiastical  cause  relating  to  the  status  of  Battel  Abbey 
is  tried  in  the  Kings  Court 7 — perhaps  because  this  monastery 
was  under  the  special  protection  of  the  king.  And  thus  the 
cases  fluctuate  throughout  this  reign  of  Stephen. 

The  same  fact  is  observable  during  the  first  years  of  the 
reign  of  Henry  the  Second.  The  Constitutions  alone  would 
indicate  this  ;  but  there  are  records  of  actual  causes,  distinctly 
establishing  the  fact.3  Thus,  a  trial  anno  11 56  as  to  the  title 
to  the  church  of  St.  Gundley  was  held  before  a  synod  presided 
over  by  archbishop  Theobald.9  The  same  appears  to  have 
been  true  of  the  case  of  Church  of  York  v.  Church  of  Glou- 
cester, except  in  its  final  stage.i°  Indeed,  the  practice  did  not 
entirely  cease  with  the  Constitutions.  There  is  a  record  of  a 
trial  in  the  Spiritual  Court  in  the  year  1175  (nine  years  after 

'  Placita  Aug. -Norm.  143. 

-  lb.  146.  The  demand  of  a  writ  is  of  itself  an  appeal  to  the  secular 
authority. 

3  lb.  147.  •*  lb.  150-154,  5  lb.  155.  ^  lb.  160. 

7  lb.  156.  s  Yh.  174,  note.  5  lb.  182-186.  '"  II),  189. 


48  HISTORY   OF   PROCEDURE. 

the  Constitutions)  as  to  a  certain  church,  upon  a  commission 
of  the  pope.i 

The  records  concerning  offences  of  the  clergy  against 
kiymcn  are  not  so  numerous  or  decisive  in  respect  of  jurisdic- 
tion prior  to  the  reign  of  Henry  the  Second  ;  but  such  as  we 
have  indicate  that  the  King's  Court  in  some  degree  exercised 
the  right  to  punish  clerical  offenders.  So  far  as  questions  of 
treason  and  abuse  of  office  held  of  the  king  are  concerned, 
the  records  are  sufficiently  clear.  The  well-known  encounter 
between  William  the  Conqueror  and  Odo  of  15a}'eux  (his  half- 
brother)  in  the  King's  Court,  and  that  of  Rufus  and  William, 
bishop  of  St.  Carilef,  in  the  same  court  have  already  been 
mentioned.-  The  Case  of  Bishop  Remigius,  in  the  time  of  the 
Conqueror,  is  still  more  to  the  point ;  since  in  that  case  the 
ordeal  of  fire  was  actually  undergone  on  behalf  of  the  de- 
fendant, who  had  been  accused  of  treason  to  the  king.^  And 
Eadmer  tells  us  that  Rufus  commanded  archbishop  Anselm 
to  be  ready  to  do  right  in  the  King's  Court  in  respect  of 
a  complaint  made  concerning  men  sent  by  Anselm  to  the 
king  for  military  duty  in  Wales. "^ 

As  to  other  great  crimes,  such  as  homicide,  it  has  already 
been  observed  that  the  fact  that  the  peculiar  punishments  of 
the  church  were  inflicted  in  particular  cases  does  not  alone 
show  that  the  offenders  were  tried  in  the  clerical  courts ; 
for  the  offences  may  have  been  committed  against  lay- 
men. Criminal  charges  (not  of  treason)  against  a  bishop 
must,  it  seems,  in  the  time  of  Henry  the  First,  have  been 
tried    in    the    Ecclesiastical   Court;''    but  as   to  men  of  the 

'  Placita  Ang.-Norm.  219.  We  do  not  enter  into  the  controversies  growing 
out  of  sections  of  tlie  Constitutions  not  relating  directly  to  the  jurisdiction  of  the 
clerical  and  lay  courts.  But  what  has  been  said  may  be  sufficient  to  show  that 
Mr.  Green's  broad  statement  (Short  If  st.  of  the  English  People,  p.  103)  that  "the 
legislation  respecting  ecclesiastical  jurisdiction  was  wholly  new  "  needs  qualification  ; 
even  if  it  be  entirely  true  in  respect  of  some  of  the  illustrations  he  gives. 

=  lb.  291,  307 ;  anle,  p.  24.  ^  jb.  30. 

•<  Eadmer,  Hist.  Nov.  37  ;  5  Freeman,  Norm.  Conq.  94. 

5  Leges  Hen.  I.  c.  5,  §  24. 


THE   COURTS. 


49 


church  of  lower  rank  the  records  arc  not  always  explicit. 
Chapter  Ixxiv.  of  the  Laws  of  Henry  the  First  provides  for 
penitential  punishments  of  bishops,  priests,  and  deacons  who 
have  committed  homicide ;  but  we  arc  not  told  in  what  court 
the  accused  (not  being  bishops)  were  tried.  There  is  no 
doubt,  however,  that  all  offences  inter  clericos  were  cognisable 
only  in  the  Ecclesiastical  Court.  ^  If  crime  were  committed 
upon  a  layman,  the  lay  courts  took  cognisance  of  it. 2  As 
to  offences  committed  by  the  clergy  which  did  not  affect 
laymen,  though  the  clerical  courts,  as  we  have  said,  always 
had  jurisdiction,  it  is  not  improbable  that  matters  of  this 
kind  were  often  tried  in  the  lay  courts  of  the  religious  houses 
concerned.  According  to  the  Laws  of  Edward  the  Confessor 
(chapter  iv.),  all  tenants  of  the  church  appear  to  have  had,  in 
the  time  of  the  Confessor,  the  right  to  a  trial  in  the  Ecclesi- 
astical Court  for  alleged  offences^  and  to  resist  being  put  upon 
trial  in  a  lay  court  ;  but  this  was  apparently  an  exceptional 
state  of  things. 

There  are  indications  that  minor  offences  (delicts)  of  the 
clergy  were  in  the  time  of  Henry  the  First  sometimes  treated 
as  subjects  of  lay  cognisance,  notwithstanding  the  language 
of  the  custumal  bearing  that  king's  name.^  Thus,  William 
of  Jumieges  obtains  a  writ  concerning  trespass  against  abbot 
Faritius  in  the  year  \\o6.^  There  is  another  writ  for  an 
alleged  trespass  by  the  priests  of  St.  Augustine  in  the  year 
1 1 13.5  \\\  Abbot  Peter  v.  Bishop  Remelin,^  in  the  same 
reign,  the  plaintiff  recovers  the  body  of  a  deceased  person, 
carried  away  by  force  by  the  defendant,  the  trial  being  had 
before  the  king,  archbishop  Anselm,  the  earl  of  Meulan, 
bishops,  abbots,  and  great  men.  The  court  appears  to  have 
been  secular,  for  the  earl  of  Meulan  delivers  the  judgment. 


'  Laws  Hen.  I.  c.  57,  §  9  ;  Peter  Blesensis,  c.  16  ;  Dialogue  of  Ecgl)ert,  c.  8. 
"  Dialogue  of  Ecgbert,  c.  8. 

^  Laws  Hen.  L  c.  57,  §  9.     See  also  Dialogue  of  Ecgbert,  c.  S. 
■*  Placita  Ang.-Norm.  93.  s  lb.  1 10.  ''  lb.  136. 

E 


so  HISTORY   OF   PROCEDURE. 

But  how  much  of  such  exercise  of  jurisdiction  was  matter 
of  consent,  or  of  privilege,  or  of  power,  in  the  particular 
instance,  cannot  be  known. 

There  was  a  second  branch  of  jurisdiction  in  the  Eccle- 
siastical Court  which  has  played  a  less  prominent,  indeed, 
but  far  more  permanent,  part  in  English  history.  The 
Spiritual  Court  of  England  has  jurisdiction  at  the  present 
day  of  certain  offences  of  the  laity  over  which  it  exercised 
jurisdiction  in  the  eleventh  and  twelfth  centuries.  Among 
these  the  chief  are  offences  between  the  sexes,  such  as 
adultery  and  promiscuous  intercourse  ;  though  if  the  illicit 
act  were  accomplished  by  violence,  jurisdiction  over  the 
offender  belonged  to  the  temporal  court.'  This  branch  of 
jurisdiction  covered  also  proceedings  in  matters  of  marriage 
and  divorce,  an  example  of  which  may  be  seen  in  the  case  of 
Richard  de  Anesty  v.  Mabel  de  Francheville.^ 

Criminal  intercourse  of  the  sexes  was  probably  always 
matter  of  clerical  jurisdiction,  though  perhaps  not  exclusively 
so,  for  among  the  customs  of  Kent  Domesday  states  that  in 
cases  of  adultery  the  king  was  entitled  to  the  man,  the  arch- 
bishop to  the  woman. 2  And  this  was  substantially  true  in  the 
twelfth  century.*^  But  when  the  king  or  earl  was  not  inter- 
ested, the  jurisdiction  was  probably  ecclesiastical,  after  the 
Conquest  if  not  before.  ^ 

^  Glanvill,  lib.  i,  c.  2  ;  lib.  14,  c.  6.  "  Placlta  Ang.-Norm.  311. 

3  I  Domesday,  I.  ■*  Laws  Hen.  I.  c.  11,  §  5. 

s  A  passage  in  Leges  Hen.  I,  c.  7,  §  3,  may  seem  to  indicate  that  the  trial 
was  in  the  popular  court. — I  Stubbs,  Const.  Hist.  232,  233.  But  this  passage 
only  declares  that  the  causes  of  the  church  are  first  to  be  tried,  on  the  as- 
sembling of  the  County  Court — "agantur  itaque  primo  debita  verre  christianitatis 
jura" — which  appears  to  refer  to  the  rights  generally  of  the  church  as  plaintiff 
and  not  merely  to  criminal  forfeitures  in  which  the  church  was  interested.  The 
church  had,  of  course,  the  same  right  to  sue  in  the  popular  courts  as  the  laity. 
The  Penitentials  seldom  si^eak  of  the  forum.  See,  for  example,  2  Thorpe,  Anc. 
Laws,  82-85  (8vo  ed.).  But  in  the  Dialogue  of  Ecgbert,  c.  8,  it  is  said  that 
criminal  offences  of  the  sexes  by  persons  within  the  church  were  of  clerical  cogni- 
sance.— 2  Anc.  Laws,  90.  Professor  Stubbs  agrees  that  for  the  punishment  of 
disobedience,  heresy,  drunkenness,  and  the  like  by  the  clergy  there  were  special 
spiritual  courts  before  the  Conquest.     "For  such,  then,  it  is  probal'lc  that  the 


THE   COURTS.  51 

To  the  Spiritual  Court  appears  also  to  have  belonged  the 
punishment  of  defamation  until  the  rise  of  actions  on  the 
case,i  when  the  temporal  courts  assumed  jurisdiction,  though 
not,  it  seems,  to  the  exclusion  of  punishment  by  the  church. 
The  punisJimoit  of  usurers,  cleric  and  lay,  also  belonged  to 
the  ecclesiastical  judges,  though  their  movables  were  con- 
fiscated to  the  king,  unless  the  usurer  "vita  comite  digne 
poenituerit,  et  testamento  condito  quae  legare  decreverit  a  se 
prorsus  alienaverit."^  That  is,  it  seems,  the  personal  punish- 
ment was  inflicted  by  the  Ecclesiastical  Court,  but  the  con- 
fiscation of  goods  (when  proper)  was  decreed  by  the  King's 
Court.  3 

The  third  subject  of  jurisdiction  of  the  Ecclesiastical  Court 
has  also  remained  in  that  court  to  the  present  day,  namely, 
the  decision  of  disputes  arising  over  the  estates  of  decedents. 
Wills  had  been  unknown,  it  seems,  among  the  Teutonic  races 
before  the  introduction  of  Christianity ;  and  the  church, 
having  brought  into  practice  the  usage  of  the  Roman  nation, 
naturally  assumed  and  retained  jurisdiction  over  questions 
arising  from  testaments,  so  long  at  least  as  no  dispute  over 
making  the  Avill  or  the  right   to   make  one   arose.4     Pleas 


bishops  had  domestic  tribunals  not  differing  in  kind  from  the  Ecclesiastical  Courts 
of  the  later  age  and  of  matured  canon  law." — l  Const.  Hist.  233.  But  that  the 
l^ractice  in  respect  of  purely  ecclesiastical  causes  had  been  irregular,  that  they 
had  been  brought  before  the  lay  courts  at  an  earlier  time,  appears  from  the 
Conqueror's  charter  of  jurisdiction. — Ante,  p.  30.     Appendix,  No.  I. 

'  Under  the  Stat,  of  Westm.  2,  c.  24,  anno  1285. 

^  Dialogue  of  the  Exchequer,  Stubbs,  Sel.  Ch.  229  (2d  ed.). 

3  lb.  229,  230.  The  passages  are  somewhat  obscure.  The  clause  above 
quoted  appears  to  indicate  that  wills  were  not  ambulatory  during  the  lifetime  of 
the  testator  as  in  modern  times.  See  also  Placita  Ang.-Norm.  249.  But  the 
language  may  imply  a  present  disposition  on  the  making  of  the  will. 

'*  Questions  in  advance  as  to  the  right  to  make  tl proposed  v^'"^,  were  considered 
in  the  lay  courts.  See  Placita  Ang.-Norm.  249.  Peter  of  Blois,  as  has  before  been 
remarked,  ante,  p.  25,  n,  4,  thought  the  ecclesiastical  judge  ought  not  to  entertain 
jurisdiction  of  wills  or  of  any  other  secular  matter,  except  incidentally  or  accessorily^ 
"Nemo  militans  Deo,"  he  says,  "  implicat  se  negoliis  secularibus.  Unde  non  videtur 
quod  ecclesiasticus  judex  debeat  cognoscere  de  causis  secularibus;  ut  de  dote,  de  sue- 
ccssione,  de  tcstameniis.     Refcrrc  ergo  arbitror,  utrum  de  tali  causa  velit  episcopus 


52 


HISTORY   OF   PROCEDURE. 


concerning  testaments,  says  Glanvill,  however,  in  general 
terms,  whether  the  question  were  if  the  "wiU  was  good,  or 
upon  its  interpretation,  ought  to  be  tried  before  the  ecclesi- 
astical judge.i  And  as  questions  of  legitimacy  in  relation  to 
the  title  to  property  also  belonged  to  the  Ecclesiastical  Court,^ 
so,  to  the  extent  of  determining  the  question  of  bastardy  or 
not,  but  no  further,  that  court  had  jurisdiction  of  disputes 
over  intestate  property  as  well  as  over  testamentary.  The 
demandant  in  respect  of  lands  alleged  to  have  been  given  in 
maritagio  could  also,  at  his  election,  bring  suit  in  the  time  of 
Glanvill  in  the  Court  Christian.^  The  jurisdiction,  Glanvill 
tells  us,  was  acquired  from  the  mutual  troth  usually  plighted. 
Nor  was  the  ecclesiastical  judge  prohibited  from  holding  plea 
in  such  matters,  though  the  claim  related  to  a  lay  fee,  if  it 
were  clear  that  the  demand  related  to  marriage  ;  unless  the 
suit  Avere  brought  against  a  stranger  to  the  blood.4 

The  permanent  results  of  the  reforms  instituted  by  Henry 
the  Second  in  derogation  partly  of  the  recently  assumed, 
partly  of  the  ancient,  clerical  jurisdiction  may  be  thus 
summarised  :  i.  All  questions  agitated  concerning  church 
property  were  relegated  to  the  King's  Court,  or  other  lay 
court,  in  one  form  or  another.  2.  All  offences  committed  by 
men  in  orders  upon  laymen  were  to  be  redressed  alone  in  the 
lay  courts.  3.  Debts  and  demands  in  favour  of  laymen 
against  clerics  were  to  be  sued  in  the  same  courts.  4.  Redress 
by  clerics  against  laymen,  when  it  was  not  pursued  for  the 
mere  purpose  of  punishing  sin,  was  to  be  sought  in  the  lay 
courts. 

On  the  other  hand  the  Court  Christian  still  retained  juris- 
diction in  the  following  cases  :  i.  Over  offences  between 
the  clergy  alone.     2.  Over  small   debts  and  perhaps  minor 

principaliter  cogiioscere,  an  incidentur,  imo  accessorie,  verbi  causa  coguoscendo  de 
causa  matrimonii,  utrum  debeat  separari,  potest  cogere  maritum  prestare  cautionem 
de  restitucnda  dote.  Sic  igitur  episcopus,  non  principaliter,  scd  incidenter,  et,  ut 
generalius  dicam,  accessorie,  potest  de  civile  causa  cognoscere." — Peter  Eles.  c.  lo. 
■  Glanvill,  lib.  7,  c.  8,  §  i.      "  lb.  cc.  13-15.        '  lb.  c.  18,  §  5.       -^  Ibid. 


THE    COURTS.  53 

property  causes  between  the  clergy.  3.  Over  matrimonial 
causes,  the  conduct  of  the  sexes,  defamation,  usury,  and  wills, 
4.  Over  (it  seems)  crimes  committed  by  the  laity,  A\hen  juris- 
diction was  souL,dit  for  the  purpose  of  imposing  ecclesiastical 
censure,  admonition,  or  penitential  punishment. 

The  jurisdiction  of  the  Ecclesiastical  Court  having  thus 
become  settled  before  the  close  of  the  reign  of  Henry  the 
Second,  a  way  was  found  to  keep  that  court  within  the  limits 
fixed,  to  wit,  by  means  of  a  writ  of  prohibition,  issued  from 
the  King's  Court  ; '  a  writ  in  use  from  the  time  at  least  of 
Glanvill,  and  probably  earlier,  until  the  present  day — the  last 
survival,  almost,  of  the  ancient  equitable  jurisdiction  of  the 
King's  Court  to  require  specific,  personal  obedience  in  an 
adverse  party. 

Besides  cases  in  which  there  was  a  settled  line  of  demarca- 
tion as  to  the  jurisdiction  of  the  Ecclesiastical  Court  and  the 
temporal  courts,  there  were  cases,  some  of  wdiich  have  already 
been  incidentally  alluded  to,  in  which  the  jurisdiction  appears 
to  have  been  shared  between  the  king,  or  lord,  or  both,  and 
the  bishoj)  or  archbishop.  There  are  certain  pleas  of  Chris- 
tianity, say  the  Laws  of  Henry  the  First,  in  which  the  king 
has  a  share  in  this  manner  :  If  the  king  permit  anyone  who 
has  committed  homicide  within  a  church  to  make  compensa- 
tion for  the  act,  the  party  must  first  pay  to  the  bishop  and 
the  king  the  price  of  his  birth,  and  so  in-law  himself;  then  he 
must  pay  five  pounds  for  the  peace  of  the  church,  and  seek 
reconciliation  of  the  church,  as  shall  belong  to  it.^  Again,  as 
to  the  withholding  of  tithes  by  a  tenant,  the  king's  officer  was 
to  go  to  the  land,  and  the  bishop  and  the  lord  of  the  land,  with 
the  priest,  were  to  take  the  crops  and  render  to  the  church 
what  belonged  to  it   (that  is,  the  tenth  part,  or  tithe),  and 

^  Glanvill,  lib.  4,  cc.  12-14  >  ^'^'  ^2,  cc.  21,  22.  A  similar  mode  of  restraining  the 
other  courts  from  encroaching  upon  the  jurisdiction  of  the  King's  Court  probably 
prevailed  ;  as  may  be  inferred  from  the  special  writ  as  to  the  Magna  Assisa. — 
Glanvill,  lib.  2,  cc.  7,  8.     Comp.  App.  No.  56. 

-  Laws  Hen.  I.  c.  il,  §  i. 


54  HISTORY   OF  PROCEDURE. 

leave  the  ninth  part  (that  is,  one  of  the  ten  parts,  the  tenth 
one  having  gone  to  the  church)  to  him  who  had  refused  to 
pay  his  tithe  ;  the  rest,  the  other  eight  parts,  they  were  to 
divide,  the  lord  to  have  half  and  the  bishop  half,  even  though 
the  tenant  in  default  were  a  man  of  the  king.i  Romescot 
was  due  at  the  feast  of  St.  Peter  ad  Vincula  ;  and  he  who 
then  withheld  it  must  pay  the  money  and  thirty  pence  addi- 
tional to  the  bishop,  and  fifty  shillings  to  the  king.^  The 
penalty  for  withholding  churchscot  afterthe  feast  of  St.  Martin 
was  similar.-^  In  the  case  of  adultery  committed  by  a  married 
man  {uxoratus),^  the  king,  as  has  elsewhere  been  stated,  was 
to  have  the  man,  the  bishop  (not  the  archbishop,  as  in  Domes- 
day for  Kent)  the  woman.^  The  man  who  committed  perjury 
upon  the  Gospels  was  to  lose  his  hand  or  half  his  were,  this  to 
be  divided  between  his  lord  and  the  bishop.^  The  man  who 
simply  bore  false  testimony  was  not  thereafter  to  be  allowed 
to  appear  as  a  witness,  and  must  pay  to  the  king  or  the  lord 
of  the  land  "helsfang."7  One  who  slew  or  maligned  a  man  in 
orders  should  make  compensation  according  to  right  ;  to  the 
bishop  payment  according  to  the  rank  of  the  party  slain  or 
injured  ;  and  to  the  king  or  lord  the  full  sum  for  the  breach 
of  peace;  or  he  must  deny  with  full  "lada,"8  One  who  un- 
justly held  "Dei  fugitivum"  must  give  him  up  "ad  rectum" 
and  make  payment  to  the  proper  person,  and  to  the  king 
according  to  his  wergeld  ;  and  anyone  who  kept  an  excom- 
municated person  or  an  outlaw  was  to  perish  without  pardon. 
Every  payment  (permitted  in  such  a  case)  was  to  be  divided 
between  the  church  and  the  king.9     And,  generally,  in  causes 

'  Laws  Ilcn.  I.  c.  ii,  §  2.  =  lb.  §  3.  ^  ib.  §  4. 

4  This  shows  the  difference  between  the  canon  and  the  (Roman)  civil  law  ;  by 
the  latter  only  the  (married)  woman  could  commit  adultery.  See  Smith,  Diet. 
Christ.  Antiq.  title  Adultery. 

5  Laws  Hen.  I.  c.  11,  §  5. 

•^  Ib.  §  6,  from  Laws  of  Cnut,  Sec.  cc.  36,  37.  See  also  Edw.  Sen.  c.  3  ; 
/Ethelstan,  lib.  I,  c.  25  ;  Bracton,  1S5,  §  2. 

7  As  to  this  term,  see  Glossary  to  Thorpe,  Anc.  Laws,  vol.  ii. 
''-  Laws  Hen.  I.  c.  11,  §  8 ;  c.  66,  §  i  ;  Laws  of  Cnut,  Sec.  c.  44. 
9  Hen.  I.  c.  II,  §  14. 


THE   COURTS.  55 

for  which  compensation  might  be  made,  the  lords  of  lands 
could  take  a  pecuniary  fine,  according  to  the  law  of  the 
locality.!  There  is  no  evidence  of  any  change  of  the  law  in 
these  matters  during  the  twelfth  century. 

In  what  court  or  courts  such  mutual  demands  were  en- 
forced does  not  clearly  appear  ;  but  it  is  not  unreasonable  to 
suppose  that  either  party  might  take  the  first  step,  the  bishop 
in  his  own  or  in  a  lay  court  if  he  preferred,  the  lord  in  his 
own  or  perhaps  in  the  bishop's  court,  and  the  king  in  his  own 
court.  Prior  to  the  reforms  of  Henry  the  Second,  a  fixed, 
specific  right  of  action  appears  always  to  have  involved  juris- 
diction in  the  superior  of  the  party  entitled  to  the  right,  or  in 
the  party  himself  when  he  had  a  court  of  judicature  ;  and  it 
would  follow,  it  seems,  that  either  the  bishop,  lord;  or  king 
could  sue  in  his  own  court  if  jurisdiction  had  not  already  been 
entertained  by  either  of  the  others  in  behalf  of  all.  Where, 
however,  the  offence  out  of  which  the  common  claim  pro- 
ceeded was  within  the  sole  socn  of  a  franchise,  as,  for 
example,  a  theft  within  the  league  of  St.  Edmund,  the  thief 
having  been  taken  there,  the  party  having  the  local  jurisdic- 
tion must  have  proceeded  in  order  to  fix  the  specific  amount 
of  the  fund  to  be  divided  ;  and  if  he  did  not  so  proceed,  and 
the  king  was  interested,  the  party  holding  the  socn  was 
probably  liable  to  a  mulct  to  the  king. 

The  elaborate  system  of  procedure  in  the  Ecclesiastical 
Court  made  known  by  the  text-books  was  unknown  to  the 
lawyers  of  the  Norman  period  ;  2  though  it  is  not  unnatural 
to  presume  that,  alongside  of  agencies  at  work  on  the  Con- 
tinent, the  seeds  of  that  system  were  sown  by  the  teaching  of 
Vacarius  at  Oxford,  in  the  later  years  of  the  reign  of  Stephen. 
This  learned  man  is  said  to  have  published,  while  there,  nine 

'  Hen.  I.  c.  II,  §  15. 

^  The  church  courts  of  England  perfectly  understood  the  canonical  division  of 
petitory  and  possessory  actions  as  early  as  the  year  1203,  and  probably  long 
before.  Chron.  Evesham,  130  (Rec.  Com.).  The  suljject  will  be  referred  to  again 
in  the  chapter  on  the  Writ  Process. 


56  HISTORY   OF   PROCEDURE. 

books  on  the  Roman  Law,  composed  of  materials  from  the 
Digest  and  Code.^  But  his  expulsion  by  Stephen,  or  his 
enforced  silence  at  all  events,  prevented  the  accomplishment 
of  any  immediate  results.^  There  had,  however,  always  been 
an  "ordo  judiciarius"  in  the  trial  of  ecclesiastical  causes,  con- 
formity to  which  was  generally  required  by  the  canon  law;^ 
and  to  the  nature  of  this  ordo  we  now  direct  our  inquiry. 

The  materials  for  reconstructing  the  old  ecclesiastical 
procedure  are  fragmentary ;  but  if  not  sufficient  to  fully 
set  forth  its  details,  they  are  enough  to  clearly  indicate  its 
general  nature.  Suit  was  begun  by  simple  summons  — 
whether  executed  upon  the  defendant  in  person,  as  in  the 
temporal  courts,  or  by  letters  placed  upon  the  altar,  as,  some- 
times, in  the  thirteenth  century,  the  records  do  not  state, 
but  probably  in  the  former  manner — and  never  by  distress. 
The  formality  of  a  summons,  however,  was  probably  dis- 
pensed with  in  cases  of  complaints  made  at  synods,  at  which 
both  parties  were  present  and  prepared  for  the  cause ;  as 
may  be  inferred  to  have  been  the  case  in  Archbishop  Roger 
v.  Bishop  Geoffrey.4  Summons,  as  in  the  temporal  courts, 
was  to  be  made  "once,  twice,  and  thrice,"  unless  sooner 
obeyed  ;  after  which  time,  if  the  defendant  failed  without 
excuse  to  appear,  he  was  in  contumacy,  as  in  the  lay 
tribunals.5 

'  "  Suggestione  pauperum  de  Codice  et  Digesta  exceptos  ix.  libros  composuit, 
(|ul  sufficiunt  ad  omnes  legum  lites  quK  in  scolis  frequentari  solent  decidendas  si 
quis  cos  perfecte  noverit." — Duchesne,  Hist.  Norm.  Script,  jd.  983  (Paris,  1619) ; 
Wcnck,  Vacarius,  p.  2.     See  also  i  Stubbs,  Const.  Hist.  494,  note. 

-  "Tempore  regis  Stephani  a  regno  jussK  sunt  leges  Romano;,  quasin  Britanniam 
domus  venerabilis  patris  Theobaldi,  Britanniarura  primatis  asciverat.  Ne  quis 
etiam  libros  retineret  edicto  regio  prohibitum  est,  et  Vacario  nostro  indicium 
silentiam  ;  sed  Deo  facicnte  [favente?]  eo  magis  virtus  Icgis  invaluit,  quo  earn 
amplius  nitebatur  impietas  infirmare." — ^John  of  Salisbury  in  Biblioth.  Patrum 
Max.  xxiii.  p.  404  (Lugd.  1677);  Wcnck,  Vacarius,  pp.  31,  32. 

3  Peter  Blesensis,  c.  3.  Exceptional  cases  are  mentioned  in  the  chapter  cited 
and  in  c.  4.  See  also  ib.  cc.  42,  44  ;  Regino  dc  Synodal ibus  Causis,  pp.  399, 
400  (Wasserschleben).  "t  Placita  Ang.-Norm.  223. 

s  As  to  contumacious  absence,  see  Peter  Blesensis,  cc.  58-60  ;  Carta  Willelmi, 
App.  No.  I  ;  Battel  Abbey  Chron.  79  (Ang.  Christ.  See.) ;  Regino  de  Synodalibus 
Causis,  pp.  330,  331. 


THE   COURTS.  57 

The  archdeacon,  acting  for  the  bishop  in  his  absence, 
held  the  ordinary  clerical  court  of  a  diocese,'  as  the  steward 
(dapifer)  held  the  lord's  lay  court ;  and  the  defendant  chose 
judges  to  sit  with  the  archdeacon.  Nor  could  a  cause  pro- 
ceed, if  objection  were  made,  before  this  was  done.^  The 
pleadings  in  private  causes  were  probably  conducted  to  an 
issue  in  formal  manner  by  oral  plaint  and  defence,  much  as 
in  the  temporal  courts;-^  though  there  is  reason  to  suppose 
that  there  w^as  more  freedom  from  rigid  formalism  of  lan- 
guage. Certain  it  is  that  nothing  is  said  in  the  records  con- 
cerning miskenning  (mistake  of  language  in  pleading)  in  the 
pleading  of  ecclesiastical  causes  before  the  thirteenth  century. 
And  in  great  public  causes,  such  as  questions  of  ecclesiastical 
authority  and  independence,  turning  upon  charters  or  other 
documentary  evidence,  the  pleadings  lost  all  rigidly  formal 
character,  being  swallowed  up  in  the  arguments  presented  by 
the  parties,^  as  appears  to  have  been  true  also  in  like  causes 
before  the  lay  courts.^  And  in  some  cases  of  prosecutions 
for  aggravated  offences  the  "ordo  judiciarius  "  was  abandoned 
altogether.6 

No  ecclesiastical  cause  was  to  be  tried  (ordinarily,  it 
seems)  without  an  "accusator"  present  in  court; 7  and  the 
accusers  and  witnesses  (a  term  which  included  compurgators) 
were  to  be  legal  men,  confronting  the  defendant  in  court,  and 
free  from  infamy,  suspicion,  or  manifest  taint,   since  priests 

'  As  to  the  early  mode  of  holding  the  bishop's  courts  in  making  the  circuit  of 
his  diocese,  see  Regino  de  Synodalibus  Causis,  pp.  206-216  (Wasserschleben). 

'  Leges  Hen.  I.  c.  5,  §  5  ;  c.  33,  §  5  ;  Excerpts  of  Ecgbert,  c.  143  ;  2  Thorpe, 
Anc.  Laws,  I20.     Comp.  Edw.  Conf.  c.  36,  as  to  lay  causes. 

3  See,  for  example,  the  Case  of  Matilda,  Placita  Ang.-Norm.  79,  referred  to  at 
length  in/m,  p.  63  ;  Leges  Hen.  I.  c.  5,  §  I. 

4  See  Richard  de  Luci  v.  Odo,  App.  No.  3  ;  Hist.  Mon.  de  Bello,  78  cl  scq. 
(Ang.  Christ.  Soc. ). 

5  Trial  by  charters,  issues  of  law,  and  other  questions  for  the  judges,  appear  to 
be  the  only  cases  in  which  arguments  were  possible  under  the  Teutonic  procedure. 

^  Peter  Blesensis,  cc.  3,  4. 

7  Leges  Hen.  I.  c.  5,  §  7  ;  Regino  de  Synod.  Cans.  495.  See  Peter  Bles. 
cc.  4,  II.  Accusation  inter  clcricos  was  to  be  in  writing,  at  least  on  the  Continent. 
Regino  de  Synod.  Caus.  pp.  399-40 1. 


58  HISTORY  OF   PROCEDURE. 

could  not  be  accused  by  men  who  could  not  be  priests. ^ 
But,  further,  it  seems  that  laymen  were  not  allowed  to  accuse 
clerks  in  the  Ecclesiastical  Court,  or  clerks  to  accuse  laymen. ^ 
If  many  criminal  charges  were  brought  against  clerks  by 
accusers  (that  is,  by  the  same  accuser,  and  perhaps  against 
the  same  clerk),  failure  in  one  of  the  cases  required  that  the 
rest  should  be  dropped.-^  A  bishop  was  not  to  be  adjudged 
guilty  except  by  seventy-two  witnesses,  nor  an  archbishop 
by  any  number  (in  an  ordinary  court).  Forty-four  witnesses 
were  necessary  to  convict  a  priest  "  cardinalis"  ;  twenty-six 
a  deacon  "cardinalis";  and  seven  a  sub-deacon  or  clerk  of 
lower  order.4  If  a  bishop  had  deviated  from  the  faith,  and 
after  private  admonition  appeared  incorrigible,  he  was  to  be 
accused  before  the  highest  men  of  the  church,  or  before  the 
pope.5  If  he  were  accused  of  certain  crimes,  he  was  to  be 
heard  by  all  the  bishops  "in  provincia,"  and  not  to  be  found 
guilty  until  legitimate  accusers  were  present,  men  of  his  own 
county  (or  country,  "  comprovinciales  "),  and  not  foreigners.^ 
And  in  the  case  of  a  priest  or  any  clerk  accused  by  the 
people  ("a  populo,"  by  the  popular  voice,  without  a  special 
"accusator"),  if  there  were  no  certain  witnesses  of  the  offence 
charged,  who  knew  of  the  truth,  the  accused  was  to  make 
oath  of  his  innocence,  calling  God  to  witness  of  the  truth  ;7 
which  shows  that  formal  accusation  by  an  accusator  was  not 
alwa}'s  necessary. 

The  case  already  referred  to  of  Archbishop  Roger  v. 
Bishop  Geoffreys  shows  the  general  character  of  pleadings 
in  private  causes  in  the  latter  half  of  the  twelfth  century, 
or,  to  be  precise,  in  the  year  1176.  The  parties  had  come 
together  in  a  council  held  at  Winchester   before  the  king, 

'  lien.  I.  c.  5,  §  9. 

=  lb.  §  8 ;  Excerpts  ofEcgbert,  cc.  44,  45  ;  2  Thorpe,  Anc.  Laws,  121. 

3  Hen.  I.  c.  5,  §  10.  -i  lb.  §  II.  s  lb.  §  25.  *  lb.  §  26. 

7  lb.  §  27.  These  passages  from  the  Laws  of  Henry  I.  are  for  the  most  part 
taken  from  ancient  canons  of  the  church,  as  may  be  seen  by  an  examination  of  the 
Dialogue  and  the  Excerpts  of  Ecgbert,  2  Thorpe,  87-127.  ^  Ante,  p.  56. 


THE    COURTS.  59 

bishops,  and  great  men,  assembled  for  the  purpose  of  effecting 
a  reconcihation  between  the  archbishop  and  the  bishop  as  to 
a  scene  of  alleged  violence  in  London,  i  It  seems,  therefore, 
to  have  been  an  ecclesiastical  council.  The  short  account  of 
the  case  states  that  the  archbishop  complained  to  the  king 
before  the  assembly  that  Geoffrey,  on  the  occasion  referred 
to,  laid  violent  hands  upon  him  ;  which  charge  was  traversed 
by  a  direct  denial.  And  the  defendant  therefore  proceeds  to 
purge  himself  in  the  sight  of  the  king  and  bishops  present, 
"in  the  word  of  truth,  according  to  law,"  upon  the  Gospels 
placed  before  him. 2  This  was  declared  by  the  archbishop  of 
Canterbury  to  have  been  legally  done  ;  whereupon  the  parties 
were  reconciled. 3 

The  appointment  of  a  second  or  trial  term  must  have  been 
necessary  in  many,  indeed  in  most,  cases  ;  for  accused  clerks, 
like  laymen,  were  commonly  required  to  produce  compur- 
gators or  witnesses,  and  sometimes  to  undergo  the  ordeal — 
that  of  bread  or  cheese,  called  the  "  corsna^d  "  in  Cnut's  laws, 
peculiar  to  the  clergy,  or  the  iron"^  or  water  ordeal,  perhaps. 
Either  form  of  proof  ordinarily  required  preparation.  This 
involved  the  declaration  of  a  medial,  as  opposed  to  the 
final,  judgment ;  in  which,  as  will  hereafter  be  seen  to  have 
been  the  practice  in  temporal  causes,  the  court  laid  down  a 
rule  declaring  who  should  bring  the  proof,  when  he  should 
bring  it,  and  of  what  it  should  consist.  The  question  of 
the  burden  of  proof,  in  the  peculiar  sense  of  the  procedure 
of  the  Norman  period — that  is,  which  one  of  the  parties 
should  furnish  the  particular  test  or  proof  required  by  the 

'  I  Twysden,  ScriiDt.  1109. 

^  "  QuodEliensis  episcopus  expresse  negans,  in  conspectu  regis  ct  episcoponnn 
circum  astancium  sacrosanctis  evangeliis  coram  eo  positis,  de  hoc  in  verbo  veritalis 
legitime  se  purgavit." — Placita  Ang.-Norm.  224. 

3  It  is  not  stated  whetlier  the  defendant  appeared  with  compurgators  ;  but  it  is 
probable  he  did.  In  another  case  (if  there  is  not  a  mistake  in  the  date)  between 
the  same  parties  it  is  said  that  the  defendant  acquitted  himself  "  cum  centissima 
manu  presbiterorum." — 2  Anc.  Laws,  Glossaiy,  Oath. 

See  Case  of  Bishop  Remigius,  Placita  Ang.-Norm.  30. 


6o  HISTORY   OF   PROCEDURE. 

court  for  deciding  the  cause — could  arise  only  when  the  action 
was  to  be  tried  by  compurgation,  party- witness,  or  ordeal ; 
all  of  which  modes  of  trial  prevailed  in  the  clerical  courts. 
The  other  modes  of  proceeding  were  not  party-proof,  but 
inquiries  into  the  whole  truth.  This  was  as  true  of  trial  by 
charters  as  of  trial  by  inquisition  or  recognition.  In  a  matter 
of  charters,  if  but  one  of  the  parties  had  a  charter,  he  pro- 
duced it  without  regard  to  the  state  of  the  pleadings  :  if  both 
parties  had  charters,  both  produced  them  for  the  consideration 
of  the  court. 

As  to  party-proof,  however,  the  rule  in  most  cases 
required  the  party  making  the  last  good  pleading,  in  answer 
to  a  presumption  against  him,  to  substantiate  the  same  by  the 
prescribed  proof,  otherwise  the  opposite  party  might  prove 
his  allegation  ;  as  will  later  be  seen  to  have  been  the  rule  in 
the  lay  courts.  Perhaps  there  were  no  real  exceptions  to  this 
rule.i  The  law  above  quoted  concerning  the  number  of 
witnesses  required  to  prove  bishops,  priests,  deacons,  or  the 
lower  clergy  guilty  of  crimes  appears  merely  to  indicate  the 
value  of  the  oath  of  denial  of  such  persons  respectively ;  not 
that  they  could  not  still  produce  witnesses  or  make  other 
proof  of  innocence  when  the  accuser  brought  forward 
sufficient  witnesses  to  prevent  the  efficacy  of  mere  denial  on 
oath.  The  procedure  appears  to  have  been  this,  that  the 
accused  cleric  gave  simply  the  oath  of  denial  in  case  the 
accuser  failed  to  produce  the  stated  number  of  witnesses, 
and  that  he  (the  cleric)  added  to  his  own  oath  such  other 
evidence  as  the  court  might  by  law  prescribe,  when  the 
accuser  produced  the  number  of  witnesses  necessary  for 
conviction  in  a  case  defended.  Thus,  in  the  case  of  Arch- 
bishop Roger  V.  Bishop  Geoffrey^^  several  times  referred  to, 

'  Peter  of  Blois  mentions  some  exceptions  to  the  following  proposition  :  "  Rc- 
gulare  est,  ut  qui  allegat  ignorantiam,  cam  probare  compellatiu-. "  But  the 
exceptions  are  where  there  can  be  no  presumption  of  knowledge.  Proof  was  never 
necessary  unless  a  presumption  was  raised  against  the  party. 

-■  Placita  Ang.-Norm.  223. 


THE   COURTS.  6i 

the  defendant  gives  his  oath  of  denial ;  and  this  was  sufficient 
because  the  plaintiff  had  not  brought  forward  witnesses,  or 
witnesses  enough. 

If  it  were  clear  that  the  term  *' synod"  was  used  in  a 
strict  sense  in  the  pre-Norman  records,  such  could  be  referred 
to  as  very  satisfactory  confirmation  of  this  rule  concern- 
ing the  ecclesiastical  procedure  of  the  Norman  period  ;  for 
though  the  higher  English  clergy  had  been  supplanted  by 
Normans  before  the  end  of  the  eleventh  century,  there  is  no 
reason  to  suppose  that  ecclesiastical  procedure  in  Normandy 
differed  materially  from  that  in  England.  It  had  the  same 
origin,  and  was  mainly  under  the  same  influence.  But  the 
records  of  clerical  litigation  in  England  before  the  Conquest 
generally  relate  to  the  temporalities  of  the  church ;  and 
though  such  litigations  are  often  said  to  have  been  before 
synods  or  synodal  councils,  the  records  strongly  suggest  the 
Witenagemot.i  The  Witenagemot  itself,  however,  might  be 
a  clerical  as  well  as  a  lay  court.  The  witan  of  the  kingdom 
might  be  assembled  as  a  Great  Synod,  to  legislate  for  the 
church,  as  well  as  to  legislate  for  the  people  at  large ;  and 
hence  the  practice  before  such  a  body  cannot  be  without 
significance.  The  record  of  some  of  the  cases,  however,  is 
clear.  Thus,  in  the  Case  of  Beornwulf  of  Mercia,^  the 
assembly  is  described  as  '' pontificale  et  synodale  concilia- 
bulum."  Suit  was  brought  by  the  monastery  of  Berkeley 
against  bishop  Heaberht  for  possession  of  the  monastery  of 
Westbury ;  and  the  oath-proof  was  given  to  the  defendant, 
who  held  a  charter. 

This  rule  that  the  last  good  pleading  gave  the  case  into 
the  hands  of  the  party  who  made  the  pleading  is  illustrated 
by  the  cases  of  the  trial  of  the  Albigensians  for  heresy  in 
the  years  1176  and  1178;  which,  though  they  occurred  at 
Toulouse,  may  safely  be  considered    as   exhibiting  the  pro- 

'  See  ante,  p.  44,  n.  4. 

'  Essays  in  Ang.-Sax.  Law,  327,  and  Thorpe,  Dipl.  67,  anno  824. 


62  HISTORY   OF   PROCEDURE. 

cedure  of  the  Ecclesiastical  Court  in  England  as  well.  In 
the  first  trial,  after  the  accused  had  been  inquired  of  con- 
cerning their  belief  (for  the  purpose  apparently  of  enabling 
the  accuser  to  make  a  formal  accusation),  and  judges  had 
been  chosen  by  both  sides,  and  the  pleadings  on  the  one  side 
and  on  the  other  set  forth  with  argument  and  authorities 
(the  question  being  one  of  law),  judgment  is  pronounced 
against  the  defendants  in  an  argued  ruling  of  the  court, 
resembling  an  opinion  in  the  Law  Reports  of  the  present  day. 
Thereupon  the  defendants  turn  to  the  people  present  and 
make  a  statement  of  their  belief,  at  variance,  as  it  seems, 
with  what  had  been  already  stated  by  them  or  imputed  to 
them  on  the  trial  ;  and  this  statement,  notwithstanding  its 
apparent  irregularity,  seems  to  have  been  deemed  a  good 
answer  (a  "  traverse  ")  to  the  accusation  and  judgment.  It 
was  not  enough,  however,  that  they  had  verbally  answered 
the  charges  preferred  ;  they  must  also  prove  their  answer. 
For  this  an  oath  was  required,  and  this  the  defendants 
refused  to  give,  basing  their  refusal  on  the  scriptural  injunc- 
tion against  swearing.  ^  Authorities  are  again  quoted  against 
them  on  this  point,  and  an  additional  judgment  of  heresy  is 
now  pronounced. 

The  second  trial  further  and  more  definitely  illustrates 
the  same  feature  of  the  procedure.  In  this  instance  they 
deny  at  the  outset  of  the  accusation  the  imputed  heresy  ;  and 
although  their  present  statement  was  doubted,  "  the  cardinal 
and  bishops  ordered  them  to  swear  that  they  believed  in  their 
hearts  as  they  had  confessed  with  their  lips.  But  they/'  as 
Roger  de  Hovenden  says,  "  like  men  of  distorted  minds  and 
crooked  intentions,  were  at  length  unwilling  to  abandon  their 
heresy  where  any  semblance  of  authority  seemed  to  aid  their 
crass  and  drowsy  intellects,  using  as  an  excuse  the  words 
which  the  Lord  is  mentioned  in  the  Gospel  as  having  said, 
'Swear  not  all.'"  There  is  nothing  to  indicate  that  the  oath 
'  Comp.  Peter  Blcsensis,  c.  35. 


THE   COURTS.  63 

was  to  be  promissory, — tliat  they  would  conform  to  the  faith 
in  the  future, — in  which  case  of  course  it  would  lose  all 
significance  as  an  illustration  of  the  point  under  consideration. 
The  defendants  deny  the  truth  of  the  accusation,  and  are 
asked  to  swear  to  their  belief  as  stated  in  the  denial. ' 

What  has  been  said  shows  that  the  party-proof  of  the 
temporal  courts,  2  in  all  its  forms,  was  in  use  by  the  clerg)-. 
Trial  by  inquisition  and  recognition  prevailed  also  in  the 
Ecclesiastical  Court.  The  Case  of  Matilda ^  affords  a  graphic 
view  of  that  mode  of  procedure  at  the  very  beginning  of 
the  twelfth  century  [anno  iioi),  and  deserves  to  be  stated  at 
length.  This  was  the  famous  case  of  the  English  lady  who, 
as  the  result  of  the  decision,  was  joined  in  marriage  to  King 
Henry  the  First.  She  had  been  charged  by  the  Normans, 
who  opposed  Henry's  marrying  a  lady  of  English  blood,  with 
having  taken  the  veil  of  a  nun  ;  and  as  she  had  finally 
accepted  the  king's  proposal,  it  became  necessary  for  her  to 
show  that  she  was  eligible  for  marriage.  She  accordingly 
lays  her  case  before  archbishop  Anselm,  stating  that  she  had 
indeed,  in  her  youth,  sometimes  appeared  veiled,  but  that  she 
was  then  under  the  charge  of  an  aunt,  who,  to  protect  her 
from  the  libertinism  of  the  Normans,  had  occasionally  placed 
a  piece  of  black  cloth  over  her  face.  This,  however,  she  had, 
as  she  affirmed,  always  refused  to  wear,  and  had  torn  it  off 
as  soon  as  her  aunt  was  out  of  sight. 

Anselm,  unwilling  to  act  alone  in  the  matter,  now  sum- 
mons a  council  of  religious  persons,  bishops,  abbots,  and 
even  (as  was  common)  nobles,  and  other  men  of  orders  to  try 
the  question  raised  against  Matilda.  The  cause  was  brought 
before  the  court  in  accordance  with  the  prescribed  course 
("juxta  praescriptam  seriem");^  and  competent  witnesses 
("idonei  testes")  were  present  to  support  the  statements  of 

'  Both  trials  as  here  stated  will  be  found  in  Roger  de  Ilovcndcn,  under  tlie 
years  1 1 76  and  1 1 78.  "  See  chaj^ter  ix.  ^  riacita  Ang.-Norm.  79. 

t  This  no  doubt  refers  to  the  formal  plaint  made  by  some  Norman,  and  the 
defence  by  Matilda. 


64  HISTORY   OF   PROCEDURE. 

Matilda.  Two  archdeacons,  whom  Ansehii  had  sent  to 
Wilton,  where  Matilda  had  been  brought  up,  to  ascertain  the 
truth,  testified  "publica  voce"  that  they  had  made  most 
diligent  inquiry  of  the  women  there,  and  that  there  was 
nothing  opposed  to  what  Matilda  affirmed.'  The  facts  had 
now  been  found,  and  the  only  remaining  question  was  whether, 
as  matter  of  church  law,  Matilda  had,  upon  the  facts,  barred 
herself  from  the  right  of  marriage.  The  rest  of  the  case  is 
not  without  interest,  and  may  be  added.  Anselm  submits 
the  law  question  to  the  judges,  and,  that  they  may  deliberate 
wholly  uninfluenced  by  him,  then  withdraws.  The  matter  is 
considered  in  his  absence,  and  an  unanimous  decision  reached, 
based  upon  a  precedent  (upon  similar  facts)  afforded  under 
Anselm's  predecessor,  Lanfranc,  that  Matilda  was  at  perfect 
liberty  to  marry  if  she  chose.  Anselm  is  called  in,  the  deci- 
sion stated,  and  the  precedent  rehearsed  ;  the  judges,  how- 
ever, declaring  that  the  case  would  have  been  equally  clear 
without  the  precedent.  Matilda  is  then  brought  into  court 
and  informed  of  the  decision.  She  thereupon  offers  to  confirm 
the  same  by  oath  or  in  any  other  manner  prescribed  by 
ecclesiastical  law,  but  is  told  that  nothing  more  is  necessary,  2 
The  most  complete  view  of  ecclesiastical  purgation  is 
found  in  the  Ecclesiastical  Laws  of  Cnut,  chapter  v.,  "  De 
Purgatione  Ordinatorum,"3  which  though  perhaps  relating  to 
the  government  and  discipline  of  the  members  of  monasteries 
and  other  religious  houses,  and  not  primarily  to  the  diocesan 
court  of  the  bishop  or  archdeacon,  probably  reflects  the  pro- 
cedure of  the  latter  court,  with  which  we  are  mainly  concerned. 

'  Here  is  an  exemplification  of  the  modern  jury  in  its  most  essential  features. 
The  archdeacons  are  the  jury  (recognitors),  appointed  by  a  disinterested  party. 
They  inform  themselves  as  to  the  facts  through  credible  witnesses,  and  report 
accordingly ;  and  their  verdict  settles  the  facts.  They  are  not  under  oath  because 
they  are  men  of  high  position  in  the  church.  The  subject  of  the  jury  will  be 
considered  in  another  chapter. 

-  For  continental  documents  illustrating  the  like  procedure,  see  Regino  de 
Synodalibus  Causis,  lib.  2,  c.  2  ;  and  see  Dove,  Zeitschrift  fiir  Kirchenr.  v.  23 ; 
IJrunncr,  Schwurg.  463.  ^  I  Thorpe,  Anc.  Laws,  3C2  ;  2  ib,  522. 


THE    COURTS.  65 

It  is  there  declared  that  if  "a  priest  who  Hves  according 
to  rule  is  charged  with  an  offence  and  with  evil  practices, 
and  he  knows  himself  innocent  thereof,  let  him  celebrate 
mass  if  he  dare,  and  clear  himself  on  the  housel  [eucharist]  in 
a  simple  suit ;  and  in  a  three-fold  suit  [that  is,  in  a  heavy 
accusation]  let  him  also,  if  he  dare,  clear  himself  on  the  housel 
with  two  of  his  fellow-ecclesiastics.  If  a  deacon,  living  ac- 
cording to  rule,  be  accused  in  a  simple  suit,  let  him  take 
two  of  his  fellow-ecclesiastics,  and  with  them  clear  him- 
self; and  if  he  be  accused  in  a  three-fold  suit,  let  him  take 
six  of  his  fellow-ecclesiastics,  and  with  them  clear  himself, 
and  be  himself  the  seventh.  If  a  secular  mass-priest  be 
charged  with  an  offence,  who  has  no  regular  life,  let  him  clear 
himself  as  a  deacon  who  lives  a  life  of  rule  ;  and  if  a  friend- 
less servant  of  the  altar  be  charged  with  an  offence,  who  has 
no  support  to  his  oath,  let  him  go  to  the  corsna^d  ordeal,  and 
then  fare  as  God  will,  unless  he  may  clear  himself  on  the 
housel.  And  if  a  man  in  orders  be  charged  with  the  feud 
["faethe"],  and  it  be  said  that  he  was  perpetrator  or  adviser 
of  homicide,  let  him  clear  himself  with  his  kinsmen,  who  must 
bear  the  feud  with  him  or  make  compensation  for  it ;  and  if 
he  be  kinless,  let  him  clear  himself  with  his  associates  or 
betake  himself  to  fasting,  if  that  be  necessary,  and  go  to  the 
corsnaed  ordeal,  and  fare  as  God  may  ordain.  .  .  .  And  if  a 
mass-priest  stand  anywhere  in  false  witness  or  in  perjury,  or 
be  cognisant  and  perpetrator  of  thefts  ....  if  he  desire  to 
clear  himself,  let  him  clear  himself  according  to  the  degree  of 
the  deed,  either  with  a  three-fold  or  with  a  simple  purgation, 
according  as  the  deed  may  be."  ''■ 

Depositions  were  often  sent  to  the  court  by  the  clergy  in 
civil  cases,  and  usually  closed  with  or  contained  the  formula 
of  the  appeal  or  plaint  of  a  plaintiff  in  a  lay  court — "  and  this 
I  am  prepared  to  prove  "-  or  "  to  prove  as  may  be  ordered,"-^ 

'  Much  of  this  may  also  apply,  probably,  to  the  trial  of  clerics  in  the  lay  courts. 
-  riacita  Ang.-Norm.  194,  195.  ^  ji,,  igg, 

F 


66  HISTORY   OF   PROCEDURE. 

or  "  to  prove  in  the  sight  of  all,  at  a  place  and  time." '  On  one 
occasion  the  deponent  offers  to  undergo  the  ideal  of  iron,  or 
whatever  equity  should  dictate,  nothing  hesitating.^  The 
same  practice  of  sending  depositions  had  prevailed,  as  might 
be  supposed,  before  the  Conquest.^ 

Trial  by  record,  called  "  lex  recordationis  "  in  law  books  of 
the  thirteenth  century,  was  the  decision  of  a  question  at  issue 
by  proof  of  a  judgment,  or  of  pleadings  or  proceedings,  accord- 
ing to  the  nature  of  the  question,  in  a  previous  cause  between 
the  same  parties  or  others  under  whom  they  claimed,  as  at  the 
present  day,  though  the  litigation  itself  must  generally,  in  the 
absence  of  an  enrolment,  have  been  proved  by  witnesses,  as 
in  the  lay  courts.'^^  Indeed,  this  oral  proof  of  the  prior  cause 
was  itself  the  record,  the  recalling  it  to  mind.  That  this  form 
of  trial  prevailed  in  the  Ecclesiastical  Court  in  England  the 
Case  of  Matilda  furnishes  indirect  evidence.  The  judgment 
referred  to  in  that  case  was  cited  as  a  precedent  of  law 
merely,  and  not,  since  it  was  ititcr  alios,  as  res  judicata,  and 
inapplicable  to  prove  any  fact  now  in  issue.  But  the  use  of 
the  precedent  shows  the  value  attached  to  a  former  decision  ; 
and  what  was  said  or  done  on  a  previous  trial  could  not  have 
been  held  in  lighter  esteem  than  in  the  lay  courts. 

In  contrast  with  the  foregoing  kinds  of  trial  must  be 
mentioned  trial  by  charters,  in  which  commonly,  as  in  ques- 
tions of  law,  the  decision  devolved  upon  the  judges.  As  for 
trial  by  charters,  documentary  evidence  had  been  intro- 
duced into  use  in  the  lay  courts,  it  seems,  by  the  church 
probably  with  the  conversion  of  the  people,  as  the  most  satis- 
factory of  all  modes  of  ascertaining  the  truth  ;  and  wherever 
it  could  be  used  in  ecclesiastical  causes,  it  was  no  doubt 
received  with  like  favour.  Its  uses  in  such  causes,  prior  to 
the  reign  of  Stephen,  however,  when  trials  of  property  in- 
terests first  came  into  general  vogue  in  the  Court  Christian, 


'  riacita  Aug. -Norm.  193,  194.         "  lb.  196,         "^  Thorpe,  Dipl.  378,  379. 
^  See  Placita  Ang.-Norm.  290,  for  sucli  a  case  ia  a  lay  courl. 


THE   COURTS.  67 

must  have  been  somewhat  Hmited.  From  that  time  on  the 
use  of  charters  in  that  court  was  frequent ;  and  when  the 
issue  in  a  cause  turned  solely  upon  a  document,  other  modes 
of  proof,  except  by  witnesses  (who  were  frequently  called 
in  support  of  the  charters)/  must  have  been  dispensed  with 
and  the  case  decided  by  the  court,  as  questions  of  law  were 
determined. 

A  good  illustration  of  trial  by  charter  in  the  Ecclesiastical 
Court  will  be  found  in  the  case  heretofore  referred  to,  of 
Godfrey  de  Luci  v.  Abbot  Odo.2  This  was  an  action  for  a 
moiety  of  the  living  of  Wye,  claimed  by  the  plaintiff  under  the 
king,  and  withheld  by  the  defendant  on  the  ground  of  the 
invalidity  of  the  plaintiff's  title,  and  the  ancient  title  of  the 
defendant.  It  was,  therefore,  in  reality  a  lay  cause  under 
the  Constitutions  of  Clarendon  and  under  the  later  law.  It 
occurred,  however,  anno  1176,  during  the  eclipse  of  the  king's 
independence,  consequent  upon  the  death  of  a  Becket ;  and 
jurisdiction  was  entertained  by  order  of  the  pope's  legate, 
Hugezun,  without  question,  before  a  general  synod  of  "  the 
whole  clergy  of  the  kingdom."  But  though  it  was  properly 
a  lay  cause,  and  though  the  king's  own  grant  was  freely 
questioned,  there  is  nothing  to  indicate  that  the  procedure 
as  to  the  charters  was  at  all  unusual. 

The  court  having  convened,  the  plaintiff,  who  was  abroad, 
appeared  in  the  person  of  a  procurator ;  who  opened  the 
cause  by  producing  letters  patent  from  Godfrey,  authorising 
his  appearance.  He  then  proceeds  to  state  the  plaintiff's 
case  in  language  free  from  technical  formalism ;  declaring 
that  during  a  vacancy  by  death  in  the  defendant's  abbey. 
(Battel),  to  which  Wye  had  been  attached,  the  king  had 
granted  him  the  church  at  that  place,  including  the  moiety 
of  the  living  in  question.     So  saying,  he  exhibits  the  king's 

'  Placita  Aug. -Norm.  27  ("per  cartas  suas  et  per  testes  suos"),  151,  152. 

-  The  case  will  be  found  in  the  Appendix,  No.  3.  For  other  examples  of  trial 
by  charters  in  the  Ecclesiastical  Court,  see  Abbot  Gausbert  v.  Bishop  Stigand, 
Placita  Ang.-Norm.  15  ;  Abbot  Walter  v.  Bishop  of  Chichester,  ib.  156. 

F    2 


68  HISTORY  OF   PROCEDURE. 

charter  of  gift.  He  then  proceeds  to  assert  that  Godfrey 
was  now  inducted,  upon  the  king's  presentation,  by  Richard, 
archbishop-^/tT^"  of  Canterbury ;  who  gave  letters  under  such 
seal  as  he  then  had,  "  for  he  was  not  yet  come  to  full 
authority."  The  letters  are  produced.  The  procurator  then 
proceeds  to  declare  that  the  archbishop,  upon  consecration, 
confirmed  his  late  act  by  a  new  institution,  and  shows  the 
charter.  He  now  demands,  upon  these  allegations  and  docu- 
ments, full  possession,  and  adds,  what  is  worth  noticing,  the 
statement:  "And  full  possession  being  had,  if  any  question 
arises  against  us,  I  am  ready  to  reply  to  the  abbot  and  monks, 
and  to  make  satisfaction  according  to  due  course  of  law  " — a 
common  phrase,  it  is  apprehended,  in  lay  causes,' 

The  suggestion  of  a  plea  to  the  jurisdiction  of  the  court 
seems  not  to  have  occurred  to  the  defendant,  though  he  was 
in  great  straits  over  the  situation.  At  all  events,  no  such 
step  was  taken.  The  defendant's  answer,  made  by  counsel, 
was  in  the  nature  of  a  demurrer  (to  evidence)  argued  at 
length.  "  Fearless  alike  of  the  king,  of  the  archbishop,  of  the 
great  men,  and  of  all  their  retainers,  master  Gerard  expressed 
himself  with  ready  speech  on  behalf  of  the  abbot."  He 
denied  the  right  of  the  king  to  give  the  vacant  church  as  he 
had  attempted  to  do ;  and  the  institution  by  the  archbishop 
was  argued  to  have  been  null,  especially  by  reason  of  a 
particular  declaration  of  the  pope.  The  defendant's  position 
could  not  be  overturned  ;  and  (with  a  prudent  regard  for 
the  king's  seal)  the  case  was  now,  by  advice  of  the  court, 
compromised. 

Here  then  was  trial  by  oath  (including  compurgation), 
witnesses,  ordeal,  inquisition,  recognition,  record,  and  by 
charters,  as  in  the  lay  courts.  Trial  by  duel  alone  was  Avant- 
ing.  This  had  always  been  discountenanced  by  the  church  ; 
and  it  was,  possibly,  owing  to  the  opposition  of  the  English 
clergy  that  the  judicial  duel  played  no  part  in  the  Anglo- 

'  Sec  rrivilegium  Raimumli,  in  the  Appendix,  No.  2. 


THE   COURTS.  69 

Saxoii  procedure. •  .'\t  all  events,  decrees  forbidding-  the 
clergy  from  engaging  in  battle  were  numerous.-  Thus  closely 
did  the  procedure  of  the  Ecclesiastical  Courts  conform  to 
that  observed  in  the  temporal  courts ;  a  fact  which  does 
not  cause  surprise  when  it  is  known  how  extensively  the 
canon  law  itself  was  permeated  at  this  time  with  Teutonic 
influences.3 

Appeals  could  be  taken  at  any  stage  of  an  ecclesiastical 
cause ;  to  the  bishop  if  the  trial  was  in  the  archdeacon^s 
court ;  to  the  archbishop  and  his  bishops  if  the  cause  was  in 
the  court  of  a  particular  bishop  ;  and  to  the  pope  if  it  was  in 
a  general  council  or  synod  of  the  church,  or  in  the  special 
court  of  the  archbishop. ^^  It  was  not  necessary  for  a  party 
to  await  a  judgment  of  the  court  before  taking  an  appeal, 
even  to  the  pope.  He  could  do  this  at  the  very  outset  of  the 
cause,  or  at  any  time  in  the  progress  of  the  trial ;  and  both 
sides  could  appeal  in  one  and  the  same  cause.  An  example 
may  be  seen  in  the  case  of  The  King  v.  Bishop  William  of 
St.  Carilef,^  anno  1088,  of  an  appeal  to  the  pope  by  the 
defendant  in  the  course  of  a  cause ;  another  in  the  case  of 
The  King  V.  Thomas  a  Becket,^  anno  11 64,  of  the  same  kind  ; 
and  another  in  the  case  of  Richard  de  Anesty  v.  j\Iabel  de 
Francheville,  7  annis  i  r  58-1 163,  of  like  appeals  by  both  parties. 

Irregular  and  frequent  resort  to  appeals,  however,  resulted 
in  abuses  requiring  the  correction  of  the  church.  At  a  council 
convened  by  the  pope  in  the  year  11 79,  one  of  the  decrees 


'  See  the  suggestion  of  a  learned  writer  in  the  \-,onAo\\  Athenit:u!ii  for  July  19, 
1879.-  "We  have  no  doubt,"  he  says,  "of  the  original  existence  among  the 
English  of  trial  by  battle.  .  .  .  The  influence  of  the  bishops  in  the  Witan  over 
the  written  legislation  of  the  kings,  and  the  declaration  of  the  law  in  the  County 
and  Hundred  Courts  by  the  bishop  or  archdeacon  along  with  the  earldorman, 
easily  account  for  the  disappearance  of  an  institution  abhorred  by  the  church."' 

-  See,  for  example.  Excerpts  Ecgb.  c.  155;  2  Thorpe,  Anc.  Laws,  124; 
c.  161 ;  2  Anc.  Laws,  126. 

3  For  example,  see  Regino  de  Synodalibus  Causis,  pp.  226  ct  scq.  333 
(Wasserschl. ).  •♦  Const.  Clarendon,  c.  S. 

5  Placita  Aug. -Norm.  307,  309.  '^  lb.  213.  Ih.  311,  313. 


70  HISTORY   OF   PROCEDURE. 

promulgated  recited  that  a  very  reprehensible  custom,  by 
reason  of  irregular  appeals,  had  sprung  up  ;  bishops  and 
even  archdeacons,  fearing  that  an  appeal  might  be  taken  in 
causes  before  them,  having  proceeded  without  notice  to  pro- 
nounce sentence  of  suspension  and  excommunication.  On 
the  other  hand,  ran  the  decree,  others,  dreading  the  sentence 
of  their  superiors,  interposed  their  appeals  without  difficulty, 
usurping  the  right  as  a  defence  to  their  iniquity ;  whereas 
appeals  were  instituted  as  a  safeguard  for  the  innocent. 
Therefore,  to  the  end  that  neither  the  sentence  of  the  prelate 
might  be  used  to  oppress  those  subject  to  him,  nor  those 
subject  enabled  at  their  sole  option,  under  pretext  of  an 
appeal,  to  escape  correction  by  their  superiors,  it  was  decreed 
that  prelates  should  not  pass  sentence  of  suspension  or  of 
excommunication  without  first  issuing  canonical  admonition 
(unless  the  fault  was  such  as  of  its  own  nature  to  require  that 
penalty)  ^  ;  nor  should  those  who  were  subject  seek  to  take 
refuge  in  an  appeal  before  the  commencement  of  a  trial.  If, 
however,  anyone  should  feel  obliged  to  appeal,  then  a  com- 
petent time  was  to  be  named  for  him  within  which  to  prosecute 
it.  If  he  should  then  neglect  to  prosecute  his  appeal  within  the 
time  named,  the  bishop  should  be  at  liberty  to  proceed  with 
the  trial.  And  if  after  taking  an  appeal  the  party  appealing 
did  not  appear,  but  the  other  party  did,  the  latter  should  be 
entitled  to  his  costs  against  the  former  if  he  was  able  to  pay 
them.  And  finally  it  was  enjoined  that  monks  and  men  of 
inferior  order,  when  about  to  receive  correction  for  their 
excesses,  should  not  appeal  at  all  against  the  discipline  of 
their  prelate  and  chapter,  but  submit  humbly  and  dutifully  to 
the  same.  2 

The    punishments    following    conviction    were   all   of    a 
penitential  nature  ;    though  if  pecuniary  damage   had  been 

'  Cases  in  which  tlie  "  ordo  judiciarius"  was  omitted. — Anle,  p.  56. 
-  Roger  de  IToveiiden,  anno  1 179.     See  further  as  to  appeals,  Peter  Blesensis, 
^^>  43>  59"     I'^i^  latter  chapter  treats  of  appeals  by  contumacious  persons. 


THE   COURTS.  71 

inflicted,  compensation  was  also  enjoined.  Cliapter  Ixxiii.  of 
the  Laws  of  Henry  the  First,  concerning  homicides  com- 
mitted by  the  clergy,  .will  afiford  a  sufficient  illustration  of  the 
nature  of  ecclesiastical  punishments.  "  If  a  bishop  commit 
homicide,  let  him  be  deposed  and  repent  for  twelve  years, 
seven  on  bread  and  water,  and  for  five  years  let  him  fast 
three  days  in  a  week,  and  the  rest  of  the  time  eat  common 
food.  If  a  priest  or  monk  slay  a  man,  let  him  lose  his  orders 
and  repent  for  ten  years,  six  on  bread  and  w^ater,  and  for 
four  'years  let  him  fast  three  days  in  a  week,  and  the  rest  of 
the  time  eat  his  own  food.  If  a  priest  wound  a  man,  let  him 
fast  for  one  hundred  days.  If  a  deacon  slay  a  man,  let  him 
be  deprived  of  his  orders  and  repent  seven  years,  four  on 
bread  and  water,  and  for  three  years  let  him  fast  three  days 
in  a  week,  and  the  rest  of  the  time  eat  common  food.  If  a 
clerk  slay  a  man,  let  him  repent  for  six  years,  four  on  bread 
and  water,  and  for  two  years  let  him  fast  three  days  in  a 
week.  If  a  layman  slay  a  man,  let  him  repent  five  years, 
three  on  bread  and  water,  and  for  two  years  let  him  fast 
three  days  in  a  week.  If  anyone  slay  a  man  in  orders  or  his 
next  of  kin,  let  him  leave  his  country  and  go  to  Rome,  and 
report  to  the  pope  and  his  council.  Of  adultery,  or  fornication, 
or  lying  with  a  nun,  let  the  like  penitence  be  made."' 

As  an  auxiliary  to  the  secular  courts,  the  Ecclesiastical 
Court  (of  the  bishop  or  archdeacon  especially)  must,  within 
its  proper  jurisdiction,  have  been  of  the  greatest  service. 
Without  it,  provincial  administration  of  justice  at  least  must 
have  been  very  defective.  It  was  a  court  of  equity  to  remedy 
such  difficulties  as  have  been  noticed,  arising  from  the  rules  of 
evidence  in  the  lay  courts  ;2  but  if  a  suggestion  is  justified 
from  the  turbulence  of  the  Norman  period,  the  power  and 
haughtiness  of  the  rich,  and  their  frequent  defiance  of  the  law 

^  For  a  more  detailed  view  of  penitential  punishment,  see  Regino  dc  Synodal- 
ibusCausis,  pp.  2\(}  ct  seq.  l\o  et  scq,  388-392  (Wasserschl.). 
-  lb.  p.  251,  c.  97. 


75  HISTORY  OF   PROCEDURE. 

— enforced  by  the  chief  ground  for  the  exercise  of  chancery 
jurisdiction  in  the  early  history  of  the  Court  of  Chancery' — 
the  Ecclesiastical  Court  may  have  served  the  purpose  of  a 
court  of  equity  in  other  respects  certainly  not  less  important.- 
The  dread  of  ecclesiastical  pains  and  penalties  operated  in 
the  middle  ages  as  a  wholesome  restraint  upon  lawlessness. 
Before  the  Conquest  the  bishop  had  sat  with  the  sheriff  in  the 
County  Court,  and  the  parish  priest  with  the  reeve  in  the 
Hundred  Court,  to  aid  in  the  administration  of  justice,  not  so 
much,  it  appears,  in  the  capacity  of  judges  as,  by  the  voice  of 
the  church,  to  compel  respect  and  obedience  to  the  law.  And 
the  clergy  continued  to  sit  in  the  secular  courts  throughout 
the  Norman  period.  As  has  already  been  stated,  the  Con- 
queror's charter  of  jurisdiction  did  not  require  the  clergy  to 
cease  attendance  upon  the  lay  courts.  In  point  of  fact 
they  appear  to  have  attended  more  numerously  after  the 
Conqueror's  law  than  before.^ 

In  the  time  of  Henry  the  First  the  bishops  and  vicars 
inter  alios  were  expressly  enjoined  to  be  present  at  the 
County  Courts,  and  to  strive  diligently  that  the  poor  should 
not  suffer  by  the  escape  of  evil  nien  from  punishment,  the 
depravity  of  oppressors,  or  the  setting  at  naught  of  the 
judges.4     In   the   interminable    litigations    in    which    Battel 

'  The  early  jurisdiction  of  tlie  Chancery  was  more  frequently  exercised  in  favour 
of  the  poor  and  weak  against  the  rich  and  powerful  than  in  any  other  way. 

"  Comp.  Regino  de  Synodalibus  Causis,  p.  245,  c.  80 ;  p.  329,  c.  296. 

3  See  Placita  Ang.-Norm.  2,  4,  23,  36,  69,  78,  100,  113,  133,  136,  176. 

••  "  Intersint  autem  episcopi,  comites,  vicedomini,  vicarii,  centenarii,  alder- 
manni,  prrefecti,  propositi,  barones,  vavasores,  tungrevii  et  ceteri  terrarum  domini, 
diligenter  intendentes  ne  malorum  impunitas  aut  graviorum  pravitas  vel  judicum 
subversio  solita  miseros  laceratione  confidant." — Leges  Plen.  I.  c.  7,  §  2.  See 
another  passage  to  the  same  effect,  ib.  c.  31,  §  3.  The  position  of  the  church 
may  be  seen  in  the  statement  following  the  one  just  quoted,  to  wit,  that  pleas  per- 
taining to  the  rights  of  the  church  were  first  in  order  (Laws  of  Edw.  Conf.  c.  3), 
then  pleas  of  the  king.  This  part  of  the  Leges  appears  to  have  been  written  before 
the  middle  of  Henry's  reign  ;  for  there  is  a  plain  i^efercnci  to  a  charter  of  the  king 
as  "recent,"  which  was  issued  between  the  years  1 108  and  1112;  Stubbs,  Sel. 
Cli.  103,  104.  The  statement  of  Thorpe  (i  Anc.  Laws,  pp.  514,  534,  613,  Svo 
cd.),  imiieachini,  (not  the  genuineness,  but)  the  correctness  of  these  passages  is 
based  upon  a  misconce|ilion  of  the  Conqueror's  charter;  which,  as  has  repeatedly 


THE   COURTS.  75 

Abbey  was  involved  in  the  twelfth  century,  the  Ecclesiastical 
Court  was  often  invoked,  apparently  in  aid  of  the  temporal 
courts.  In  the  turbulent  reign  of  Stephen,  the  parson  of  the 
church  of  Middlehale — a  church  given  to  Battel  Abbey  by 
Rufus — having  died,  Robert  de  Crevequeor  usurped  the  right 
of  presentation,  and  granted  the  church  to  the  canons  of 
Leeds  in  Kent.  The  abbot  of  Battel  seeks  restitution  of 
Robert  and  the  canons  in  vain.  Now  he  seeks  "  royal 
justice,"  and  then  ecclesiastical  ("quairitur  hinc  justitia 
regalis,  inde  ecclesiastica ")  ;  but  by  reason  of  iniquity  it 
could  not  be  had.  Upon  the  accession  of  Henry  the  Second 
the  abbot  sues  again,  now  in  the  King's  Court,  now  in  the 
Ecclesiastical ;  from  which  latter  court  an  appeal  is  taken  by 
both  sides  to  the  pope.  The  pope  sends  the  case  back  with 
his  mandate  directing  a  trial  of  the  cause  by  two  English 
bishops.  The  defendants  elude  the  pope's  mandate  in  every 
way,  until  finally,  after  manifold  fatigues,  the  bishops  are 
commanded,  both  by  apostolical  and  royal  authority  ("  turn 
apostolica  tum  regia  auctoritate "),  to  hear  and  decide  the 
cause.  The  defendants  still  refuse  to  appear  ;  but  no  further 
delay  could  be  allowed,  "  and  the  judges,  observing  the 
manifest  contumacy  of  the  other  side,  were  very  determined 
concerning  the  right  of  the  abbot  and  convent  of  Battel. 
Sentence  was  therefore  given  with  apostolical  authority"  in 
favour  of  the  abbot. 

Immediately  following  is  an  account  of  a  dispute  between 
the  same  abbot  and  a  certain  priest  named  Roger,  who  had 
withheld  from  the  abbot  rent  due  to  the  monastery.  The 
abbot  institutes  legal  proceedings  to  enforce  payment ;  and 
when  at  length  Roger  finds  himself  unable  to  resist,  knowing 


been  said,  did  not  forbid  the  attendance  of  the  clergy  upon  the  secular  courts. 
The  idea  of  some  persons  that  Henry  I.  had  reunited  the  spiritual  and  temporal 
jurisdictions  is  based  upon  the  same  error.  It  would  have  been  strange  indeed  if 
a  priest  (for  such  the  author  of  the  Leges  clearly  was,  as  see  c.  5,  much  of  which 
is  the  homily  of  a  priest),  writing  on  !a\v  and  procedure,  and  frequently  quoting 
the  old  laws,  liad  nul  been  familiar  w  ilii  tiic  Conqueror's  charter. 


74  HISTORY   OF   PROCEDURE. 

that  he  should  be  expelled  from  possession  of  his  church  (the 
subject  of  the  rent)  "with  ecclesiastical  censure,"  he  yields 
and  makes  due  amends. 

Subsequently,  in  the  reign  of  Henry  the  Second,  the 
same  church,  upon  the  occasion  of  the  death  of  the  incumbent, 
was  seized  by  Haymo  Peche,  lord  of  the  manor  in  which  it 
was  situated,  and  a  clerk  presented  by  him  without  the  con- 
sent of  the  abbot.  The  latter  again  seeks  redress,  now  from  the 
King's  Court,  now  from  the  Ecclesiastical  ;  complaining  on 
the  one  hand  of  the  violence  of  Haymo  and  on  the  other  of 
the  intrusion  of  the  clerk,  who  had  been  inducted  by  orders 
of  the  king.  The  whole  case  was  finally  determined  in  a 
special  session  of  the  Ecclesiastical  Court,  upon  papal 
mandates  obtained  by  the  abbot  ;  the  judge  (Gilbert,  bishop 
of  London)  declaring  in  favour  of  the  plaintiff,  and  removing 
the  clerk  by  apostolical  authority,  and  restoring  the  church  to 
the  abbot.  Another  difficulty  arose  after  the  death  of  the 
parson  now  instituted  over  the  church  by  the  abbot ;  the 
same  clerk  before  rejected  again  seizing  it  under  the  support 
of  Haymo.  The  matter  is  now  brought  before  the  King's 
Court  alone,  and  there  decided  again  in  favour  of  the  abbot. ' 

The  cases,  or  the  first  two  certainly,  were  tried  before  the 
adoption  of  the  Constitutions  of  Clarendon;  and  it  may 
therefore  be  said  that  they  only  serve  to  show  that  the  Ecclesi- 
astical Court  at  that  time  exercised  jurisdiction  of  disputed 
rights  of  presentation  and  of  debts  due  from  one  church  to 
another.  But  while  they  do  show  this  important  fact,  they 
also  show  that  the  King's  Court  entertained  concurrent 
jurisdiction,  without  the  ability  at  times  to  enforce  justice. 
Hence  the  necessity  of  resorting  to  the  Ecclesiastical  Court. 
The  usefulness  of  such  examples  could  not  have  been  lost  in 
other  cases,  when  violence  set  at  naught  the  administration 
of  law  by  the  temporal   courts.     Whether  a  bishop  or  priest 

'  Hist.  Mull,  dc  Licllo,  ii3-ll9(Ang.  Cluist.  Soc.) ;  Placita  Ang.-Norm.  174, 
note,  and  245. 


THE    COURTS.  -js 

acted  alone  or  in  solemn  court  is  immaterial  :  In  cither  case 
judicial  functions  were  assumed.  The  warning,  censure,  or 
excommunication  was  the  act  of  a  judge. 

T/ic  Kings  Court. 

With  the  Norman  Conquest  the  King's  Court  proper 
became  a  disturbing  and  an  uncertain  influence  in  adminis- 
tration. It  appeared  furnished  with  new  processes  of  law, 
and  with  claims  to  jurisdiction  of  unknown  extent.  It 
early  showed  a  disposition  not  to  be  restricted  by  the  limits 
of  the  old  Aula  Regis,  which  had  been  content  with  exercising 
jurisdiction  over  the  king's  great  thegns  and  offences  touching 
the  personal  rights  and  dignity  of  the  king.  What  the  new 
court  was,  and  by  what  means  it  made  its  way  among  and 
over  hostile  jurisdictions  existing  on  every  side,  and  clinging 
to  their  ancient  privileges  with  the  tenacity  of  imperilled 
existence,  and  how  it  finally  established  its  own  supreme  and 
almost  universal  authority,  are  now  to  be  considered. 

The  inevitable  result  of  the  gradual  change  from  locali- 
sation to  centralisation,  indeed  the  inevitable  accompaniment 
of  the  change  in  its  later  stages,  as  part  of  that  change, 
began  to  manifest  itself  long  before  the  Conquest,  not  only  in 
the  redress  of  rights  specially  appertaining  to  the  Crown,  and 
of  infractions  upon  its  dignity,  but  also  in  the  interference, 
occasionally,  of  the  king  in  the  local  and  provincial  (county) 
administration  of  justice. ^  But  it  was  reserved  for  the 
Norman  kings  to  make  direct  way  for  the  great  jurisdiction 
of  the  royal  tribunals,  by  systematic  encroachment  upon  the 
jurisdictions  of  the  popular  and  franchise  courts ;  a  fact, 
however,  not  fully  manifested  before  the  twelfth  century. 

The  King's  Court  proper  of  the  Norman  period  has 
sometimes  been  called  a  committee  of  the  Witenagemot  or 

'  Mr.  Freeman  has  traced  tlic  matter  down  to  the  Coni-[uesl,  and,  somewhat 
generally,  afterwards. — 5  Norm.  Conij.  29S,  299. 


76  HISTORY   OF   PROCEDURE. 

of  the  Great  Council ;  but  the  expression  is  so  inapt  and  mis- 
leading that  no  considerations  even  of  convenience  should 
permit  its  use.  A  committee  is  the  delegate  of  the  superior 
body,  working  for  it^  and  subject  to  its  order  and  control. 
The  King's  Court  stood  in  no  such  relation  to  the  Great 
Court.  It  was  in  no  sense  the  delegate  of  that  court ;  it  was 
not  created  by  it,  and  it  did  not  act  for  it.  It  was  coeval  in 
the  (Anglo-Norman)  Constitution  with  the  Great  Court  itself; 
it  had  sprung  at  the  same  time  from  the  same  parentage,  the 
Conquest.  It  had  therefore  the  same  right  to  exist ;  and  its 
functions  could  not  be  abrogated  without  its  own  consent, 
that  is  to  say,  the  consent  of  the  king.  It  was  not  from  the 
indistinct  and  flickering  representative  which  the  King's  Court 
had  in  the  pre-Norman  Thcningmannagemot  (Thcgn-men's- 
Court),!  or  from  the  more  distinct  Aula  Regis  of  the  Con- 
fessor, that  the  King's  Court  had  derived  its  origin  :  it  was 
from  the  strong  arm  of  conquest  and  of  the  Conqueror  that 
both  that  and  the  Great  Court  obtained  their  power  and 
authority.  The  King's  Court  represented  the  king  :  when 
he  was  not  present,  it  was  his  delegate  alone.  In  its 
relation  to  the  Great  Court,  it  was  simply  a  smaller  body  of 
great  men  attendant  upon  the  king,  who  had  their  place  also 
in  the  larger  court.     Its  composition  will  be  noticed  later. 

Under  special  commissions,  the  jurisdiction  of  the  court 
was  limited  to  the  trial  of  such  causes  as  had  been  delegated 
to  the  special  members  of  the  court.  The  ordinary  King's 
Court,  however,  the  full  court  sitting  with  the  king,  exercised 
a  jurisdiction  limited  in  fact  only  by  the  king's  will.  That  is, 
there  was  nothing  to  prevent  the  king  from  drawing  into  his 
court  all  the  causes  of  the  people  ;  and  on  one  pretext  or 
another  he  did  seriously  invade  the  jurisdictions  of  other 
courts,  especially  of  the  Manorial  Courts.     This  practice  had 

'  See  5  Freeman,  Norm.  Coiiq.  App.  note  NN.  This  court  was  already 
enlarging  in  tlie  time  of  tlie  Confessor,  and  must  finally  have  become  the  most 
important  judicial  Iriljunal  of  the  kingdom  liad  there  been  no  Conquest. 


THE    COURTS.  77 

become  such  a  grievance  to  the  baronage  in  the  reign  of  king 
John  that  it  was  made  a  clause  of  Magna  Charta  that  the  writ 
of  praecipe  should  not  be  allowed  to  anyone  concerning  any 
frank  tenement,  whereby  a  freeman  might  lose  his  court.' 

This  writ  of  praecipe  was  suited  to  the  bringing  of  any 
cause  relating  to  lands  into  the  King's  Court,  wherever  the 
lands  lay,  and  whoe\xr  had  primary  jurisdiction  over  ques- 
tions relating  to  them.  When  anyone  complained  to  the  king 
or  to  his  justiciars,  says  Glanvill,  concerning  his  fee  or  his 
freehold,  if  the  complaint  were  such  as  was  proper  for  the 
determination  of  the  King's  Court,  or  the  king  was  pleased  to 
have  it  decided  there  ("  vel  dominus  vex  velit  in  curia  sua 
deduci  "),  this  writ  of  pra:cipe  was  granted. 2  The  writ 
directed  the  sheriff  to  command  the  defendant  to  surrender, 
without  delay,  to  the  plaintiff  the  land  in  question  ;  and  if  he 
failed  to  do  so,  to  summon  him  before  the  king  or  his  jus- 
ticiars, at  a  certain  time  and  place,  to  show  why  he  had 
failed. -5  There  was  another  writ  of  praecipe  of  a  similar 
character,  designed  to  give  the  King's  Court  jurisdiction  over 
the  debts  of  the  laity.'^  These  writs  were  not  limited  at  all  to 
the  king's  tenants  in  chief;  and  hence  it  is  evident  that  the 
proceeding  was  an  invasion  of  the  jurisdiction  of  the  private 
courts  of  the  baronage,  unless  indeed  they  were  granted  only 
on  a  failure  of  justice  in  the  local  court.^  There  is  no  evidence 
that  this  was  the  ground  of  the  writs  ;  and  the  passage  above 
quoted  from  Glanvill,  showing  that  the  first-named  \\x\\.  of 
praecipe  was  issued  at  the  pleasure  of  the  king,  indicates  tliat 
that  was  not.  Glanvill  would  not  have  used  such  an  expres- 
sion of  a  case  in  which  the  king  was  in  duty  bound  to  grant 
the  writ  ;  however  true  it  is  that  the  king's  writ  at  this  time 
was  alwa}-s   matter  of  grace.*^     These  writs  were  the  more 

'  Magna  Charta,  c.  24.  "  Glanvill,  lib.  I,  c.  5.  '  lb.  c.  6. 

■»  lb.  lib.  10,  cc.  I,  2.  5  Even  then  it  was  a  novelty.     See  infra. 

^  "  Der  Konig  hat  das  Recht,  jeden  Process  ilber  ein  liegendes  Gut  aus  dcni 
Untergerichte  zu  evocicren  und  an  das  Konigsgericht  zu  ziehen." — I'lrunner, 
Schwurg.  405. 


78  HISTORY   OF   PROCEDURE. 

desirable  in  that  they  gave  the  aid  and  security  of  trial  in  the 
most  powerful  judicial  tribunal  of  the  land.  Whether  the 
plaintiff  who  had  thus  brought  the  defendant  before  the 
King's  Court  under  the  writ  for  the  recovery  of  lands  could 
have  the  benefit  of  the  peculiar  procedure  of  that  court,  the 
recognitions,  is  not  clear.  An  eminent  writer  has  stated  that  he 
could. f  But  there  is  ground  to  question  this  statement.  The 
writ  was  a  writ  of  right,  as  the  plaintiff  counts  upon  his  right 
of  property,  and  tenders  the  ducl.^  Unless  therefore  this  fact 
were  accidental,  and  the  plaintiff  could  now,  in  ordinary 
course,  have  a  new  writ  demanding  a  recognition,  being 
content  (for  the  Magna  Assisa  was  for  defendants)  to  sue  for 
seisin,-^  the  plaintiff  had  gained  nothing  in  point  of  the  mode 
of  trial.  And  if  the  plaintiff  wished  to  try  seisin  only,  why 
did  he  not  in  the  first  place  obtain  a  writ  of  recognition, 
instead  of  taking  upon  himself  such  unnecessary  trouble  and 
expense  ?  The  natural  purpose  of  the  praecipe  was  to  try  the 
right  of  property  ;  and  the  plaintiff  must  (unless  he  had  acted 
in  ignorance)  have  changed  his  mind  in  afterwards  seeking  a 
recognition.  However,  the  party  would  have  no  difficulty  in 
obtaining  a  writ  of  recognition  if  he  were  ready  to  pay  the 
(arbitrary)  price  demanded  by  the  king.^  It  may  be  added 
that  it  is  not  improbable  that  the  advantages  of  the  new  pro- 
cedure of  the  King's  Court  may  explain  the  outcry  sometimes 
raised  against  the  assises  and  other  novelties  of  the  reign  of 
Henry  the  Second  ;  the  objection  probably  springing  from 
the  private  jurisdictions.^ 

Jurisdiction  obtained  by  the  King's  Court  in  this  way 
may  be  called  the  extraordinary  jurisdiction  of  the  court. 
It  was  acquired  by  direct  usurpation,  in  derogation  of  the 
rights  of  the  popular  courts  and  manorial   franchises,  upon 

'  Brunner,  Schwurg.  406.  =  Glanvill,  lib.  2,  c.  3. 

3  The  ^vrit  of  recognition   "  de  feodo  vel  laico"  appears  to  have  resulted  in 
determining  the  right  of  property  :  Glanvill,  lib.  13,  c.  25  ;  Bracton,  2S5  b  ;  au/c; 

VV-  4,  5- 

■•  See  the  chapter  on  the  Writ  Process. 

5  See  2  Ilouard,  Anc.  Lois,  287  ;  Brunner,  Schwurg.  301. 


THE    COURTS. 


79 


the  sole  authority  of  the  king  ;  giving  us  a  ghmpse  of  the 
extent  to  which  the  royal  prerogative  had  been  pushed  after 
the  Conquest.  But  this  was  not  the  limit  of  the  usurpation 
of  jurisdiction  by  the  King's  Court.  All  of  the  manorial 
writs  (writs  to  the  manors)  issued  by  the  king  or  justiciar 
provided  that  if  the  lord  addressed  failed  to  do  justice  (the 
"nisi  feceris"  clause)  in  favour  of  the  party  who  sought  it,  the 
king's  officer  (the  sheriff  or  justiciar  usually)  should  do  it. 
In  so  far  as  this  resulted  in  drawing  a  cause  into  the  King's 
Court — and  it  was  through  this  clause,  along  with  the  writs 
of  praecipe,  that  the  private  courts  ultimately  fell  into  decay — 
it  was  a  novelty  and  a  usurpation.  There  is  nothing  to  show 
that  causes  could  be  taken  from  the  Manorial  Courts  to  the 
king  for  trial  before  the  Conquest.  The  Thegn-men's  Court 
and  the  Aula  Regis  appear  to  have  been  aristocratic  courts  of 
original  jurisdiction  only,  or  at  all  events  having  appellate 
jurisdiction  only  over  disputes  of  the  king's  thegns.  Indeed, 
it  follows,  if  this  observation  be  correct,  that  the  entire  jurisdic- 
tion exercised  by  the  King's  Court  after  the  Conquest,  except 
as  to  disputes  between  his  tenants  in  chief,  and  matters 
affecting  the  king,  was  extraordinary,  being  a  usurpation  of 
the  authority  of  other  courts.  The  provision  of  the  old  Anglo- 
Saxon  law  that  cases  should  be  taken  to  the  king  only  upon 
failure  of  justice  in  the  local  jurisdiction  does  not  imply 
that  the  cause  was  then  to  be  tried  in  Jiis  court,  but  only  that 
he  would  take  measures  to  see  that  the  cause  was  fairly  tried, 
probably  in  the  local  court,  or  in  the  Hundred  or  County 
Court. 

The  jurisdiction  of  the  King's  Court,  including  the  king's 
prerogative,  according  to  the  Leges  Henrici  Primi — a  custumal 
partly  of  the  early  years  of  the  reign  of  Henry  the  First,  and 
completed,  as  we  have  it,  before  the  reforms  of  Henry  the 
Second,  if  not  before  his  reign — embraced  the  following 
matters  :  The  preservation  of  peace  with  security,  breach  of 
the  king's  peace  given  by  his  hand  or  writ,  danegeld,  picas  of 


8o  HISTORY   OF   PROCEDURE. 

contempt  of  the  king's  writs  or  commands,  slaying  or  injuring 
the  members  of  his  household,  disloyalty  and  treason,  contempt 
or  evil  speaking  of  the  king,  "  castellatio  trium  scannorum  " 
(an  expression  the  meaning  of  which  is  not  understood  "},  ' 
outlawry,  theft  punishable  with  death,  murder  (secret  slaying), 
counterfeiting  of  the  king's  money,  arson,  housebreaking, 
assault  in  the  king's  highway  ("  forestel "),  the  fyrd  or  ex- 
pedition, the  harbouring  of  runaways,  premeditated  assault, 
robbery,  destroying  of  ways,  invasion  of  the  king's  land 
and  property,  treasure-trove,  shipwreck,  "  algarum  maris " 
(a  term  of  doubtful  meaning),-  rape,  invasion  of  forests, 
reliefs  of  the  king's  barons,  fighting  in  the  king's  house  or 
precincts,  the  breaking  of  the  peace  ///  hostico,  failure  to 
repair  fortresses  or  ships,  having  and  keeping  (that  is,  har- 
bouring) a  person  excommunicated  or  outlawed,  breaking  of 
pledge,  fleeing  in  a  land  or  naval  battle,  unjust  judgment, 
failure  of  justice,  and  perverting  the  king's  law.  All  army- 
ways  (places  for  the  execution  of  criminals)  were  in  the  king's 
socn.  The  king  was  the  special  protector  of  all  men  in  orders, 
strangers,  poor  persons  and  mean,  who  had  no  protector. 
Pleas  relating  to  such  matters,  it  is  added,  are  the  king's  own 
pleas,  and  do  not  belong  to  sheriffs,  apparitors,  or  to  his 
ministers.-^  Following  this  category  there  is  an  enumeration 
of  certain  rights  of  the  king  personally  in  respect  of  pleas 
pertaining  to  the  church,  arising  apparently  in  the  Court 
Christian  ;  a  matter  heretofore  considered.4 

Most  of  the  particulars  of  the  foregoing  catalogue  must 
have  been  special  subjects  of  the  king's  socn  in  the  Anglo- 

'  Schmid  does  not  know  its  meaning :  Gesetze,  442,  note,  and  Glossary, 
Castellatio.  See  also  Spelman,  Glossary,  Castellacium  ;  i  Thorpe,  Anc.  Laws, 
518,  note  (8vo  ed.). 

^  See  Thorpe,  Glossary  to  Anc.  Laws. 

3  Leges  Hen.  L  c.  10.  Qiiwre  as  to  the  meaning  of  "  apparitores "  in  this 
connection.  See  the  acts  of  Fule,  appai-itor,  in  the  Case  of  Ailward,  Placita  Ang. - 
Norm.  260.  In  the  Cilossary  to  Stulibs,  Select  Cliarters,  the  word  is  said  to  mean 
a  summoner ;  but  it  seems  to  have  a  wider  meaning  here,  if  not  in  Ailward's  Case. 

■*  Ante,  pp.  53,  54. 


THE   COURTS.  8r 

Saxon  period  as  well  as  after  the  Conquest.  A  new  phase 
of  the  iiiHvdruvi  had  come  to  pass  in  the  stringent,  but 
necessary,  legislation  of  the  Conqueror  for  the  protection  of 
his  Norman  followers  in  England.  The  old  law  had  been 
that  the  king  was  entitled  to  a  fine  of  forty-six  marks  against 
the  hundred  or  wapentake  which  did  not  produce  the  slayer  ;  ^ 
after  the  Conquest  it  was  proclaimed,  upon  a  presumption  not 
unnatural  under  the  circumstances,  that  when  a  person  was 
found  slain,  and  the  slayer  was  not  produced,  the  person  slain 
was  considered  to  have  been  a  Norman,  and  a  fixed  fine  of 
forty-six  marks,  as  before,  imposed  upon  the  hundred  or 
wapentake,  but  finally  varying  in  different  localities  accord- 
ing to  the  frequency  of  such  cases.^  By  the  last  quarter 
of  the  twelfth  century,  the  time  of  the  Dialogue  of  the 
Exchequer,  the  distinction  in  blood  between  Norman  and 
Englishman  had  almost  faded  out ;  but  the  fine  was  still 
imposed  in  all  cases  of  secret  slaying,  upon  the  old  pre- 
sumption.3  Still,  if  in  fact  it  could  be  proved  that  the  person 
slain  was  of  English  blood  alone,  the  act  was  not  niurdrum.^ 
The  murdrum  must,  however,  have  been  more  a  matter  for 
the  Eyre,  after  the  establishment  of  provincial  visitations, 
than  of  the  central  King's  Court. 

In  the  time  of  Glanvill,  the  King's  Court  had  criminal 
jurisdiction  of  causes  of  treason  to  the  king's  person,  of 
sedition  in  the  kingdom  or  army,  of  the  fraudulent  conceal- 
ment of  treasure-trove,  of  breaches  of  the  king's  peace,  of 
homicide,  of  arson,  of  robbery,  of  rape,  of  forgery  and  counter- 
feiting {crimen  falsi),  and  of  other  things  of  a  like  nature.^ 
From  this  last  general  enumeration  were  excluded  theft, 
scuffles,  blows,  and  wounds,  as  being  within  the  sheriff's  juris- 
diction ;  though  the  last  three  offences  were  cognisable  in  the 

'  Laws  Edw,  Conf.  c.  15. 

"  Laws  Win.  I.  c.  22 ;  Hen.  L  cc.  91,  92 ;  Dialogue  of  the  Exchequer,  lib.  I, 
c.  10;  Stubbs,  Sel.  Ch.  201  (2d  ed.).  3  Dialogue,  nt  supra. 

•»  Bracton,  135  b ;  Fleta,  lib,  I,  c.  30. 
5  Glanvill,  lib.  i,  c.  2. 

G 


82  HISTORY   OF   PROCEDURE. 

King's  Court  if  alleged  to  have  been  committed  against  the 
king's  pcace.i 

As  to  civil  picas,  the  King's  Court  had  at  this  time 
cognisance  of  causes  concerning  baronies,  advowsons  of 
churches,^  status,  when  the  question  was  one  of  freedom  or 
servitude,^  dower  when  the  widow  had  received  nothing  at 
all,  breaches  of  fines  (concords)  made  in  the  King's  Court, 
matters  of  homage,  reliefs,  purprestures  (boundaries),  and 
debts  owing  by  the  laity.  And  to  these  were  added  causes 
relating  to  seisin,  tried  by  process  of  recognition,"^  and  causes 
relating  to  the  right  of  property  arising  under  the  writ  of 
praecipe,  already  referred  to  as  extraordinary  process.  The 
recognitions  mentioned  by  Glanvill  were  the  assise  of  mort 
d'anccstor,  of  the  last  presentation  to  a  churchy  de  clerico  vel 
laico  feodo,  whether  anyone  were  seised  of  a  freehold  on  the 
day  of  his  death  as  of  fee  or  as  of  pledge,  whether  anyone 
were  under  age  or  not,  whether  any  one  died  seised  of  a 
certain  freehold  as  of  fee  or  as  of  ward,  and  whether  anyone 
presented  the  last  parson  to  a  church,  by  virtue  of  the  fee 
that  he  held  in  his  demesne,  or  by  virtue  of  a  wardship  (the 
difference  between  the  second  and  the  last  being  this,  that 
in  the  former  case  the  question  was  which  of  two  claimants 
had  had  the  last  presentation,  and  in  the  latter  the  character 
under  which  an  admitted  presentation  had  been  made),  and 
the  assise  of  novel  disseisin.^ 

The  fact  has  often  been  pointed  out  by  competent  writers 
that  the  Norman  kings  of  England,  among  other  means 
adopted  for  strengthening  their  position,  sought  the  support 
of  the  people,  and  to  this  end  not  only  refrained  from  over- 
turning the  local  and  popular  courts,  but  even  encouraged 
the  exercise  of  jurisdiction  by  them  in  matters  of  litigation. 


'  Glanvill,  lib.  i,  c.  2. 

^  As  to  cases  affecting  the  churcli,  see  the  consideration  of  the  jurisdiction  of 
the  Ecclesiastical  Court. 

^  Glanvill,  lib.  5,  c.  i.         ■>  II).  lib.  I,  c.  3.  5  lb.  lib.  13,  c,  2, 


THE    COURTS.  83 

In  a  charter  issued  between  the  years  1108  and  1112^  pointing 
apparently  to  obstacles  put  in  the  way  of  the  old  popular 
courts,  the  king  orders  that  the  County  and  Hundred  Courts 
thereafter  sit  in  the  same  places  and  at  the  same  times  as  in 
the  time  of  King  Edward,  and  not  otherwise  ;  and  that  all  of 
the  county  should  attend  those  courts  as  in  the  time  of  the 
Confessor.  I 

But  this  must  not  be  understood  as  implying  too  much. 
It  was  equally  important  to  strengthen  the  influence  of  the 
King's  Court.  This  court  must  be  made  to  the  king  what 
the  Duke's  Court  in  Normandy  was  to  the  duke,  and,  on  a 
far  greater  scale,  what  the  Manorial  Court  was  to  the  lord 
of  a  franchise.  Like  these  courts,  it  must  further  be  made 
profitable  to  its  head :  litigation  must  be  brought  there. 
How  the  jurisdiction  of  a  local  court  could  be  covertly 
invaded  and  taken  away  at  the  very  beginning  of  the  Norman 
supremacy  by  virtue  of  the  "  nisi  feceris  "  clause  of  the  king's 
writ,  has  already  been  noticed  ;  how  later,  perhaps  not  until 
the  reign  of  Henry  the  Second,  the  local  and  popular  courts 
could  be  directly  ousted  of  their  jurisdiction  by  the  king's 
writs  of  praecipe,  has  also  been  remarked  ;  and  how  in  the 
same  reign  an  effectual  mode  of  bringing  questions  of  seisin, 
which  certainly  had  been  proper  and  actual  subjects  of 
litigation  in  the  local  courts,  into  the  King's  Court  through 
the  recognitions  has  also  been  alluded  to.  Most  questions 
relating  to  real  property  were  now  brought  within  the  juris- 
diction of  the  King's  Court ;  and  this  too  without  legislation 
aimed  at  the  authority  of  the  local  courts.  And  w^ith  the 
right  to  bring  into  the  King's  Court,  under  the  nisi  feceris 
clause,  a  trial  of  the  right  of  property  in  lands  went  the 
right  to  draw  to  the  same  court,  in  the  same  way,  all  litiga- 
tions touching  rights  growing  out  of  the  tenure  of  lands,  e.g. 
of  rent  withheld. 2  And  then,  just  as  there  was  introduced 
alongside  of  the  manorial  writ  of  right  as  to  lands  a  prcecipe 

'  Slubbs,  Sel.  Ch.  104  (2d  ed.).  =  Gbnvill,  lib.  12,  cc.  1-8. 

G    2 


84  HISTORY   OF   PROCEDURE. 

quod  rcddat,  as  to  lands,  to  give  the  King's  Court  jurisdiction 
regardless  of  the  question  whether  the  local  and  sheriffs 
courts  (for  the  case  usually  went  from  the  local  court  to  the 
sheriff  in  the  County  Court  and  then  to  the  King's  Court — in 
each  case  by  virtue  of  a  nisi  feceris  clause)  had  done  justice 
or  not,  or  had  been  asked  to  do  so  ;  so,  alongside  of  the 
manorial  writ  of  right  as  to  rent  or  services,  there  was  intro- 
duced a  praecipe  quod  reddat  concerning  debts  (of  the  laity) 
generally,  giving  the  King's  Court  original  jurisdiction  in  the 
same  manner. '  Jurisdiction  in  property  causes  was  com- 
pleted by  the  writ  of  dower  unde  nihil,  the  King's  Court 
arrogating  exclusive  jurisdiction  V'.'hen  the  widow  applied  for 
a  writ,  claiming  that  she  had  received  nothing  at  all  of  her 
,dower.2  By  such  means,  without  the  aid  of  literal  statute,  the 
King's  Court  established  its  jurisdiction  over  nearly  all  civil 
questions  ;  over  all,  indeed,  that  did  not  belong  exclusively  to 
the  Court  Christian. 

But  one  step  more  was  necessary  to  give  the  King's  Court 
universal  jurisdiction,  under  forms  outwardly  regular.  Juris- 
diction of  crimes,  from  theft  to  homicide,  had  been  assumed 
in  the  course,  if  not  from  the  beginning,  of  the  Conqueror's 
reign.  This  was  certainly  true  of  the  higher  crimes ;  but 
assaults,  blows,  and  trespasses  generally  remained  as  before 
the  Conquest,  cognisable  solely  by  the  local  courts,  except 
when  the  parties  were  the  king's  tenants  in  chief.  Glanvill, 
as  we  have  seen,  tells  us  how  the  King's  Court  was  enabled 
to  complete  the  circuit  of  its  jurisdiction  and  encroachment, 
and  to  draw  to  itself  the  trial  of  delicts.  To  the  sheriff  in 
the  County  Court,  he  says,  pertains  the  cognisance,  in  case 
of  failure  of  justice  in  the  Manorial  Courts,^  of  scuffles,  blows, 
and  wounds,  unless  the  plaintiff  allege  that  the  act  was  "  dc 
pace   domini   regis   infracta.''      A   short   allegation — a   pure 

'  Glanvill,  lib.  lo,  cc.  I,  2.  ~  lb,  lib.  6,  c.  14. 

^  "Per  defectum  dominorum,"  the  substantial  equivalent,  it  seems,  of  the 
nisi  feceris  clause  in  the  manorial  writs. 


THE    COURTS.  85 

fiction,  also — was  sufficient  to  prevent  a  defendant  from 
successfully  pleading  to  the  jurisdiction  of  the  King's  Court. 
The  hint  was  readily  availed  of;  and  before  the  end  of  the 
twelfth  century  parties  appear  in  the  King's  Court  trying 
cases  of  trespass  de  bonis  asportatis,  of  false  imprisonment, 
and  the  like.  ^  It  should  be  added,  however,  that  the  records, 
by  their  silence,  leave  it  uncertain  whether  the  parties  may 
not  have  been  of  such  rank  as  to  entitle  them  to  sue  in  the 
King's  Court.  2  Be  this  as  it  may,  it  seems  clear  that  that 
court  had  found  the  means  in  Glanvill's  time,  if  not  earlier, 
of  entertaining  jurisdiction  of  trespasses  to  the  person  or  to 
the  property  of  an  individual.  The  phrase  "  in  pace  domini 
regis  ^^ — zuithin  the  peace  of  the  king — is  predecessor  of  and 
equivalent  in  legal  effect  to  the  later  phrases  "  in  pacem  "  or 
"contra  pacem  domini  regis;"  for  the  defendant,  having 
committed  the  act  while  ivitJdn  the  king's  peace,  had  there- 
fore committed  it  against  the  king's  peace.  The  term  was 
merely  jurisdictional  in  its  origin.  There  was  no  limit  of 
pecuniary  value,  it  may  be  added,  to  the  trial  of  causes  of 
this  kind  in  the  King's  Court  before  the  thirteenth  century. 

Thus,  by  the  writ  process  generally,  partly  by  virtue  of 
an  insidious  clause  in  the  manorial  writs  of  right,  partly  by 
open  usurpation  under  the  writs  of  praecipe,  and  partly  by 
the  use  of  a  fiction  in  a  plaintiff's  appeal  of  trespass  or  theft, 
was  finally  obtained  the  jurisdiction  which  has  supplied  the 
superior  courts  of  England  and  their  new  successor  with  busi- 
ness until  the  present  day.  Out  of  this  jurisdiction  of  the 
King's  Court  was  set  apart,  or  rather  fixed,  by  Magna  Charta, 
the  hearing  of  common  pleas  at  Westminster,  resulting  in 
the  Court  of  Common  Pleas,  with  concurrent  jurisdiction  with 
the  elder  court ;  and  later  the  Court  of  Exchequer,  by  the  use 

'  Placita  Ang.-Noim.  285;  i  Rot.  Cur.  Reg.  pp.  4,  11,  14,  17,  112;  2  lb. 
120,  121. 

-  In  some  cases  the  term  "  in  pace  "  is  omitted  from  the  i^olls,  and  in  some  cases 
it  appears  there.  It  would  seem  unnecessary  to  use  the  term  when  the  parties  were 
the  king's  tenants  in  cliicf,  while  the  contrary  would  be  true  if  tliey  were  not. 


S6  HISTORY   OF   rROCEDURE. 

of  a  more  ingenious  and  not  less  effectual  fiction  (the  fiction 
of  king's  debtor)  than  the  one  which  in  GLanvill's  time  had 
been  resorted  to  by  the  King's  Court,  carried  away  from  the 
parent  court  such  civil  causes  as  litigants  chose  to  take  to  the 
Exchequer,  without,  however,  depriving  the  King's  Court  of 
any  part  of  its  jurisdiction.  The  Court  of  Exchequer  thereby 
regained  the  jurisdiction  which  it  had  begun  to  exercise  con- 
currently with  the  King's  Court  in  the  twelfth  century,  but 
which  had,  apparently,  been  largely  taken  away  upon  the 
establishment  of  the  Court  of  Common  Pleas  (or  rather, 
probably,  by  reason  of  the  familiar  clause  of  Magna  Charta 
which  resulted  in  that  court)  ^  and  abrogated  by  the  Articles 
upon  the  Charters  in  the  twenty-eighth  year  of  Edward  the 
First.  It  need  only  be  added  that  the  fluctuation  of  juris- 
diction over  matters  pertaining  to  the  church  and  the  clergy 
has  been  considered  in  treating  of  the  Ecclesiastical  Court ; 
and  also  that  the  King's  Court  entertained  causes  which  in 
modern  times  would  be  termed  equitable,^  a  matter  further 
considered  in  the  chapter  relating  to  the  Writ  Process, 

As  distinguished  from  the  Great  Court,  the  King's  Court, 
as  has  already  been  stated,  was  a  smaller  body ;  it  was 
of  indeterminate  number,  composed  ordinarily  of  the  king, 
justiciar,  and  the  chief  of  the  king's  household  and  immediate 
retinue — "the  great  officers  of  the  household,  the  justiciar, 
chancellor,  treasurer,  and  barons  of  the  Exchequer,  with  such 
of  his  clerks  as  the  king  might  summon  "  ^ — or  of  persons 
specially  delegated  to  hold  royal  pleas.  It  had  no  invariable 
staff  of  judges  before  the  last  quarter  of  the  twelfth  century, 
but  changed  with  times  and  circumstances,  and  the  king's 


'  Madox  took  the  same  view.  He  says:  "But  it  seems  the  Exchequer  was 
understood  to  be  forbidden  to  hold  common  pleas  by  those  general  words  in  the 
clause  which  appoint  that  from  henceforth  common  pleas  should  not  follow  the 
King's  Court,  but  be  held  in  a  certain  place,  to  wit,  the  Bank." — Hist.  Exch.  145 
(fol,  ed.);  and  see  ib.  544,  594-602. 

-  See  Placita  Ang.-Norm.  221,  241  ;  /osi,  App.  No.  56. 

3  Preface  to  vol.  ii.  p.  74  of  vStubbs's  ed,  of  Benedictus. 


THE    COURTS.  87 

pleasure.  It  was  presided  over  by  the  king  in  person,  or,  in 
his  absence,  by  his  great  justiciar ;  the  second  man  in  the 
kingdom  until  the  time  of  William  Longchamp  in  the  last 
decade  of  the  twelfth  century.^ 

But  there  were  two  courts  of  the  king,  not  reckoning  the 
Great  Council  or  the  Exchequer.  There  was  a  court  which 
attended  the  king's  person — the  one  just  described — which 
was  the  King's  Court  by  distinction  ;  and  there  was  also  a 
court  held  from  time  to  time  in  the  counties  by  delegates  of 
the  king,  sent  out  usually  from  the  court  which  attended  his 
person,  which  v/as  also  the  King's  Court.  The  former  body 
continued  to  be  of  indeterminate  numbers  and  membership, 
so  far  as  history  informs  us,  until  the  year  1178;  when  a 
third  royal  court  of  litigation  was  created.  By  the  counsel 
of  the  wise  men  of  the  kingdom  the  king  now  selected  five 
men,  two  clerks  and  three  laymen,  all  of  his  own  private 
household,  and  ordered  them  to  hear  all  the  complaints  of 
the  people  and  to  do  right.-  It  was  also  ordered  that  the 
five  should  not  leave  the  King's  Court  (that  is,  they  should 
always  attend  the  king),  but  remain  there  to  hear  the  causes 
of  the  people.  What  is  also  of  special  interest,  it  was  further 
provided  that  if  any  question  arose  before  them  which  they 
could  not  decide,  they  were  to  present  it  to  the  king,  and 
then  it  should  be  determined  as  seemed  good  to  him  and  the 
wise  men  of  the  land.-^ 

This  last-named  provision  was  a  substantial,  or  rather  a 

'  In  the  absence  of  the  king  the  justiciar  was  first  in  the  Ivingdom,  his  powers 
being  viceregal  and  nearly  universal.  Longchamp,  bishop  of  Ely,  arrogated  to 
himself  both  the  office  of  chancellor  and  that  of  justiciar  (the  chancellorship  had 
before  his  advent  become  worthy  the  position  of  an  archbishop),  holding  the 
justiciarship,  however,  only  during  1 190-91,  but  holding  the  chancellorship 
from  1 189  to  1 197.  The  justiciar  still  retained  most  of  his  ancient  powers  through 
the  first  third  of  the  next  century  ;  but  the  position  of  chancellor  was  greatly 
enhanced  in  dignity  under  Longchamp.  From  the  very  outset  of  his  appointment 
as  chancellor,  the  justiciar  (Hugh  of  Durham)  became  jealous  of  his  power. — 
2  Benedictus,  loi  (Stubbs's  ed.).  See  further  as  to  LongchamiD's  position,  ib.  loS, 
109,  143,  15S,  207,  210-222. 

=  I  Benedictus,  207.  ^  Ibid. 


S8  HISTORY  OF   PROCEDURE. 

partial,  repetition  of  a  clause  in  the  Assise  of  Northampton, 
anno  1176.  At  the  council  which  resulted  in  the  statutes 
known  by  that  name,  the  kingdom  had  been  divided  for 
judicial  purposes  into  six  parts,  over  each  of  which  three 
persons  had  been  assigned  as  justiciars  of  the  king.  These 
judges  were  to  decide  all  suits  involving  half  a  knight's  fee 
and  less  ;  unless  the  complaint  was  so  important  that  it  could 
not  be  decided  without  the  king,  or  unless  it  were  such  that 
the  judges  should  report  it  to  him,  or  to  those  who  should  be 
in  the  king's  place  (in  his  absence),  by  reason  of  the  judges' 
doubts.^ 

These  provisions  are  the  first  mention  that  has  come 
down  to  our  day  of  anything  like  revisory  authority  over  the 
King's  Court.  The  earlier  provision  [ccnno  1176)  cannot 
create  surprise,  since  the  questions  referred  to  would  arise  on 
the  circuits  ;  and  such  especially  as  might  affect  the  rights  of 
the  king  or  of  his  great  men  ought  not,  judging  from  the 
ancient  rights  of  the  king  and  of  his  tenants  in  chief,  to  be 
determined  elsewhere  than  before  the  central  court  attending 
the  king's  person.  And  it  was  natural,  further,  that  the 
judges  should  have  the  right  to  report  questions  of  difficulty 
to  the  same  body.  Nor,  indeed,  rightly  considered,  should 
the  later  provision  {anno  1 178)  create  surprise.  The  court 
was  indeed  the  central  court  of  the  king ;  but  it  was  a  new 
creation,  partly  taking  the  place  of  the  larger  body  which  had 
hitherto  constituted  the  King's  Court  par  excellence,  and  which 
now,  it  may  be  observed,  became  the  germ  of  the  King's 
Council  of  the  thirteenth  century.^  And  whether  the  five 
had  been  and  were  still  members  of  the  larger  body  (they 
probably  were),  or  were  new  men  entirely — in  either  case  it 
would  not  be  safe  to  give  the  new  court  unlimited  jurisdiction. 

The  provisions  referred  to  do  not,  it  will  be  noticed, 
provide  for  any  appeal  in  the  proper  sense  of  the  term,  but 

'   I  EenefHctu>,  no. 

^  The  Great  Council  was  of  course  the  orifrinal  of  Parliament. 


THE    COURTS.  89 

only  for  a  reservation  of  difficult  and  important  causes  for  the 
decision  of  the  whole  court ;  which  may  now  be  called,  from 
its  later  name,  the  Council.  Still,  we  are  probably  justified 
in  looking  upon  these  provisions  as  the  origin  and  germ  of 
an  appellate  jurisdiction  above  the  (smaller)  King's  Court. ' 
The  smaller  court  appears  to  be  the  direct  original  of  the 
modern  King's  Bench  ;-  which  therefore,  unlike  the  original 
King's  Court,  if  this  be  true,  is  a  tribunal  of  legislative 
creation. 

In  the  course  of  the  next  year,  however,  the  kingdom 
was  divided  into  four  circuits,  each  with  five  justiciars  of  the 
king,  except  the  fourth  (Northern)  circuit,  to  which  six  were 
assigned,  Glanvill  being  one  of  them,  and  becoming  in  the 
following  year  chief  justiciar.  These  six^  the  assignment  de- 
clared, were  constituted  justiciars  in  the  King's  Court  for  hear- 
ing the  complaints  of  the  people  — "  Isti  sex  sunt  justitiai  in 
Curia  Regis  constituti  ad  audiendos  clamores  populi."^  The 
meaning  of  all  this  appears  to  be  that  the  arrangement  about 
the  five  of  the  previous  year,  that  they  should  not  depart  from 
the  king,  was  changed,  and  that  the  six  acted  both  on  circuit 
and  in  the  presence  of  the  king,  in  the  latter  case  as  the 
Bcnch.^  Of  the  later  history  of  the  court  in  the  twelfth  cen- 
tury, we  have  no  information  beyond  an  occasional  allusion  ; 
as  when  Benedictus  tells  us  that  Richard  the  First,  upon  his 
departure  for  the  Holy  Land  [anno  1189),  made  Hugh,  bishop 
of  Durham,  chief  justiciar,  and  appointed  as  his  associates 
Hugh  Bardolf  and  William  Bruer.5  This  shows  that  there 
was  still  no  fixed  number  of  judges  in  the  Bench. 

This  smaller  court  may  well  be  called  a  judicial  committee 
of  the  larger   body;^   which  latter  (from  being   the   King's 

'  See  2  Benedictus,  pref.  76  ;  Stubbs,  Sel.  Ch.  23  (2d  ed.). 

^  See  2  Benedictus,  pref.  75  ;  Hardy's  Introd.  to  Close  Rolls,  95-105  (8vo  ed.). 

3  I  Benedictus,  239. 

''  This  has  been,  it  seems,  truly  suggested  to  be  the  meaning  of  the  "  justiciarii 
sedentes  in  banco"  of  Glanvill,  lib.  2,  c.  6,  lib.  8,  c.  i,  and  lib.  11,  c.  i. — 
2  Benedictus,  pref.  75.  s  lb.  (text)  loi.  ^  2  lb.  pref.  75. 


90  HISTORY   OF   PROCEDURE. 

Court,  which  it  is  still  sometimes  called)  becomes  noAV  the 
King's  Council,  more  familiar  in  the  history  of  the  following 
century,  but  to  be  distinguished  from  the  Great  Council.  The 
great  justiciar,  as  a  natural,  though  not  as  an  immediate  con- 
sequence, becomes  degraded  from  first  officer  of  the  realm  to 
the  position  of  chief  justice  of  a  purely  judicial  tribunal,  and 
one  not  of  last  resort."  But  one  step  was  needed  to  place  the 
chancellor  above  him  in  rank,  and  to  substitute  him  to  the 
justiciar's  position  of  second  man  of  the  kingdom.  That  step 
was  taken  when  the  chancellor  became  presiding  officer  (in 
the  king's  absence)  of  the  King's  Council ;  and  this  step 
followed  soon  after  the  death  of  Glanvill,  when  the  office 
of  chancellor  (which  was  soon  followed  by  that  of  justiciar) 
fell  to  William  Longchamp,  the  chief  minister  of  Richard  the 
First.2 

From  the  time,  then,  of  the  creation  of  this  smaller  dele- 
gate court  attendant  upon  the  king's  person,  we  have  what 
almost  immediately  came  to  be  called  the  Bench,  and  what, 
as  we  have  several  times  observed,  came  afterwards  to  be 
called  the  Council.  Records  early  in  the  thirteenth  century, 
long  before  the  establishment  of  any  new  staff  of  judges  as 
the  judges  of  the  Common  Pleas  (to  which  court  the  term 
Bench — "  in  banco  " — has  sometimes  been  supposed  to  apply, 
from  the  time  of  Glanvill)  constantly  distinguish  between  the 
two  courts.  Thus,  in  a  writ  issued  by  Henry  the  Third,  in 
the  third  year  of  his  reign,  to  the  justices  itinerant  for  Kent, 
the  king  orders  the  justices  to  stay  all  demands  preferred 
before  them  concerning  franchises  by  the  archbishop  of 
Canterbury,  by  Geoffrey,  Earl  of  Clare,  or  by  others,  until 
the  fifteenth  day  after  the  feast  of  St.  Hilary  "before  our 
Council  at  Westminster."  In  like  manner  if  any  difficult 
pleas  arose  before  them,  such  as  they  could  not  easily  dcter- 


'  Hubert  de  Burgh,  chief  justiciar  from  1216  to  1232,  is  considered  to  have 
been  the  last  of  the  ancient  justiciars  uniting  political  with  judicial  powers. — 
2  Benedictus,  prcf.  77.  '  Ante,  p.  87,  note. 


THE    COURTS.  91 

mine  "  without  the  advice  of  our  Council,"  they  should  also 
stay  these  causes  for  trial  at  the  same  time  and  place,'  The 
reservation,  it  will  be  noticed,  is  to  the  King's  Council,  not 
to  the  Bench  ;  and  this  appears  to  have  been  the  uniform 
practice  of  the  time. 

It  may  sometimes  be  difficult,  especially  in  the  twelfth 
century,  to  distinguish  between  the  Exchequer  and  the 
Council,  if  there  were  any  great  distinction  in  point  of 
personnel.  The  same  persons  frequently  sat  in  different 
characters  in  the  courts.  The  Exchequer  was  composed, 
inter  alios,  of  barons  attending  regularly,  ex  officio  or  by 
special  summons,  at  Easter  and  Michaelmas,  upon  the  king ; 
and  these  were  the  persons,  with  still  others,  especially  the 
higher  clergy,  who  constituted  the  fluctuating  body  of  the 
Council.  Before  the  men  composing  either  of  these  bodies, 
but  often  sitting  in  the  hall  of  the  Exchequer  at  West- 
minster, at  the  close  of  the  fiscal  terms  of  Easter  and 
Michaelmas,  or  at  other  times,  common  pleas  were  frequently 
tried  ;  the  court  being  sometimes  designated  as  the  King's 
Court  at  Westminster  "ad  Scaccarium,"^  and  sometimes 
simply  as  the  King's  Court  at  Westminster.^  The  Ex- 
chequer may  be  distinguished  from  the  elelegate  body  when 
the  membership  is  disclosed,  as  well  as  when  the  record 
shows  that  the  particular  proceeding  was  an  accounting  of 
the  revenue ;  and  in  a  case  of  this  latter  kind,  the  body  may 
of  course  be  distinguished  from  the  Council.  So,  too,  when, 
upon  completing  the  accounts  of  the  fisciis,  members  of  the 
same  court  continued  to  sit  for  the  hearing  of  common  pleas, 
it  was  still  called  a  session  of  the  court  "ad  Scaccarium," 
This  was  sometimes  true  even  when  the  body  sat  for  the 
hearing  of  common  pleas  at  a  time  entirely  distinct  from  the 
fiscal  sessions  of  the  Exchequer.4     There  appears  to  be  only 

'  Madox,  Hist.  Exch.  367  (fol.  ed.).     -  Placita  Ang.-Norm.  267.     ^  ib,  276. 
■*  See  2   Rotnli   Ciui.x   Regis,    155,   Tlilaiy  term,   essoins  (excuses   for   non- 
appearance) talven  "coram  domino  G.  et  baronibus  de  Scaccario." 


92  HISTORY  OF  PROCEDURE. 

a  question  of  names  in  such  a  case.  Sitting  for  judicial  pur- 
poses within  the  hall  of  the  Exchequer,  the  body  would 
naturally  be  considered  as  the  Court  of  Exchequer,  though 
it  might  have  been  sitting  elsewhere  the  day  before  with  the 
king  in  council. 

The  central  King's  Court  sat  at  times  and  places  suited 
to  the  king's  convenience  and  pleasure,  when  he  was  in 
England.  It  followed  the  king  in  his  uncertain  progresses 
until  Magna  Charta  required  the  holding  of  common  pleas 
"in  aliquo  loco  certo."  ^  Judging  from  the  Rotuli  Curiae 
Regis  and  the  Placitorum  Abbreviatio  (both  of  which  begin 
with  the  sixth  year  of  Richard  the  First), 2  there  must  have 
been  a  large  amount  of  litigation  in  the  court,  requiring  pro- 
tracted and  frequent  sessions  ;  but  the  uncertainty  of  place 
and  time  of  the  king's  movements  must  have  operated  greatly 
to  the  detriment  both  of  persons  actually  litigating  in  the 
court  and  of  persons  desiring  to  do  so.  The  sessions  of  the 
Eyre  in  the  counties,  and  the  stated  terms  of  the  fiscal  court, 
the  Exchequer,  at  Westminster,  were  the  necessary  resort  of 
many  litigants  in  this  state  of  things  ;  a  matter  to  be  adverted 
to  again  in  treating  of  the  Exchequer.  What  was  the  state 
of  things  when  the  king  was  absent  from  England  does  not 
appear.  But  it  seems  not  improbable  that  the  court  was 
then  more  stable,  having  sessions,  whenever  necessary,  at 
Westminster,  under  the  justiciar. 

Of  the  other  royal  court,  held  in  the  counties,  away  from 
the  king's  person,  there  are  traces  as  early  as  in  the  reign 
of  Rufus ;  and  probably,  if  all  were  known,  iters  of  the 
judges  might  be  found  to  have  been  made  in  the  reign  of  the 
Conqueror.     Indeed,  this  early  date  for  occasional  iters  can 

'  Magna  Charta,  c.  17. 

-  The  rolls  of  the  King's  Court  began  at  least  as  early  as  the  seventh  year  of 
Henry  the  Second  (1160).  At  the  end  of  the  Appendix,  No.  56,  there  will  be 
found  a  transcript  from  the  MS.  roll  of  Michaelmas,  9  John,  quoting  pleadings 
from  a  roll  of  that  early  time. 


THE    COURTS.  93 

be  assigned  with  some  degree  of  confidence,  with  the  sug- 
gestion of  Domesday  book  before  us.  It  is  certain  that  the 
commissioners  of  the  Great  Survey  had  frequent  occasion  to 
consider  questions  of  property  affecting  the  interests  of  the 
king,  or  of  his  tenants  in  chief.  Thus,  ahnost  at  the  begin- 
ning of  the  Domesday  record  there  appears  a  report  of  a  trial 
relating  to  customs  taken  in  Kent  from  foreign  merchants  by 
an  officer  named  Bruman,  in  violation  of  the  rights  of  the 
church  of  the  Trinity  and  of  the  monastery  of  St.  Augustine. 
And  as  a  result  of  the  confession  of  the  defendant,  the  church 
and  the  monastery  had  their  customs  "  judicio  baronum  regis 
qui  placitum  tenuerunt."  '  To  this  could  be  added  many 
other  cases  decided  during  the  survey  touching  claims  of  the 
king  or  of  his  chief  barons.^  Nor,  indeed,  was  the  idea  of  the 
judicial  iter  wholly  new  in  England  at  the  Conquest. 

Not  a  few  of  the  trials  in  the  counties,  during  the  reign  of 
the  Conqueror,  were  held  by  the  king's  immediate  justiciars 
away  from  the  king ;  some  of  them  rising  to  the  dignity  of 
Witenagemots,  as  has  already  been  pointed  out. 3  Others 
were  smaller  bodies.  There  was  a  trial  at  a  court  of  three 
counties,  held  at  Kenetford,  in  the  year  11 80,  for  the  hearing 
of  extensive  claims  of  the  church  of  Ely,  almost  attaining  to 
the  rank  of  a  Witenagemot.  Among  those  present  were  the 
king's  justiciar,  bishop  Geoffrey,  three  delegates  of  the  king, 
and  many  sheriffs.^  The  case  of  Bishop  Wulfstan  v.  Abbot 
Walter  5  was  tried  before  the  same  justiciar,  by  virtue  of  the 
king's  writ ;  and  the  case  of  Gundulf  v.  Picot  ^  was  tried  in 
Cambridge,  under  the  king's  writ,  before  his  justiciar  Odo  ; 
the  king  himself  being  interested,  but  not  being  present. 
But  these  are  isolated  cases;  and  there  is  no  indication  of 
any  system  of  circuits  in  this  reign. 

The  earliest  record  of  anything  like  a  modern  judicial  iter 
by  the  royal  justiciars  appears  to  be  that  of  the  case  of  The 

»  Placita  Aug. -Norm.  37.  -  lb.  37-61,  293-307.  3  AiUe,  p.  23. 

^  Placita  Ang.-Norm.  22.  s  jb.  16.  ''  lb.  34. 


94  HISTORY   OF  PROCEDURE. 

King  V.  Abbot  of  Tavistock,'  in  the  latter  part  of  the  reign 
of  Rufus,  anno  1096.  That  record  exhibits  the  king  sending 
bishop  Walkelin  and  his  chaplain,  the  hated  Flambard,  into 
Devonshire,  Cornwall,  and  Exeter,  to  hold  royal  pleas.  But 
this  is  all  that  is  known  of  the  reign  of  Rufus.  The  earliest 
Pipe  Roll  2  in  existence  is  of  the  thirty-first  year  of  the  next 
king,  Henry  the  First ;  and  this  exhibits  a  system  of  iters  by 
the  royal  justiciars  in  full  and  regular  working  order.^  This, 
it  is  reasonable  to  assume,  continued  through  the  remaining 
five  years  of  that  reign,  and  until  the  anarchy  of  Stephen  and 
Matilda  ;  when  it  certainly  ceased.  The  system  was  renewed 
by  Henry  the  Second,  as  early  as  the  second  year  of  his  reign, 
from  which  time  the  Pipe  Rolls  begin  again,  and  continue 
without  interruption  thereafter. 

The  earlier  iters  of  this  reign,  how^ever,  were  mostly  fiscal, 
and  held  generally  by  the  sheriffs,  and  were  not  marked  with 
the  perfectness  which  characterised  them  in  the  latter  part  of 
the  reign  of  Henry  the  First.  It  was  not  until  the  year  1166 
that  the  judicial  eyres,  held  before  d.^'^wit^  justiciars,  become 
annual  and  general.^  From  this  time  the  system  has  con- 
tinued until  the  present  day,  though  not  without  much  change 
in  the  adjustment  of  the  machinery.^ 

The  results  of  the  reintroduction  by  Henry  the  Second  of 
the  system  of  provincial  visitations  by  justiciars  from  the 
central  court  of  the  king  are  as  important  as  the  causes  lead- 
ing to  the  system  are  easy  to  seek.  The  sheriffs  were,  indeed, 
the  king's  niissi,  whether  considered  as  the  vicecomites  of 
Normandy  or  as  a  continuation  of  the  pre-Norman  shire- 
reeves,  who  long  before  the  Conquest  had  become  the  king's 
officers.     But  the  sherilTs  were  hereditary  officials.     Though 


'  Placlta  Ang.-Norm.  69. 

-  The  Rolls  of  the  Pipe  contain  entries  of  the  fiscal  proceedings  of  the 
Exchequer. 

3  See  I  Stubbs,  Const.  Hist.  391.  '■  2  Benedictus,  pref.  64. 

5  The  facts  are  traced  by  Professor  Stid)l)s  in  his  preface  to  vol.  2  Benedictus, 
IT-  57  73j  ^"^^  i"  I  Const.  Hist.  604,  605. 


THE    COURTS. 


95 


subject  to  removal,  they  were  not  assigned  for  temporary 
duty,  but  for  service  of  indefinite  duration  ;  and  this  gave 
them  ample  opportunity  for  personal  promotion  and  for 
oppression  and  extortion,  which  they  seldom  failed  to  im- 
prove. They  went  the  fiscal  circuits  of  the  king,  and  some- 
times the  purely  judicial  ;  but  the  king  was  defrauded,  and 
the  people  cried  out  against  their  abuse  of  ofiice.  The 
remedy  was  most  natural.  The  king  sent  out  the  trusted 
men  of  his  own  immediate  court,  and  others  in  whom  he  had 
confidence,  to  hold  the  provincial  Eyres  ;  and  from  being  at 
first  chiefly  fiscal  visitations,  it  was  found  desirable  to  give 
the  iters  a  wider  scope,  and  allow  the  people  of  the  counties 
the  benefits  of  the  peculiar  procedure  and  the  more  ample  pro- 
tection of  the  King's  Court.  The  result  was  that  before  the 
end  of  the  reign  of  Henry  the  Second  the  chief  feature  of  the 
iters  was  the  hearing  of  common  pleas  and  judicial  causes 
generally;  and  this  result  was  encouraged  in  the  most  deci- 
sive way,  to  the  extent  of  making  direct  inroads  upon  the 
jurisdictions  of  the  courts  of  franchise. 

Ralph  de  Diceto  is  the  chief  authority  in  support  of  the 
cause  above  assigned  for  the  re-establishment  of  the  iters  of 
the  royal  justiciars^  so  far  as  the  king  personally  was  affected 
by  the  conduct  of  the  sheriffs.  He  tells  us  graphically  that 
having  upon  inquiry  found  the  sheriffs  intent  mainly  upon 
their  own  personal  interests,  the  king,  growing  more  and  more 
anxious  for  the  common  welfare,  committed  jurisdiction  in 
certain  places  to  other  faithful  men,  that  the  known  advent 
through  the  counties  of  the  power  of  the  public  might  strike 
terror  to  delinquents,  and  that  those  who  retained  the  roj'al 
revenues  in  their  own  hands,  and  injured  the  majesty  of  the 
prince,  might  incur  the  king's  wrath.  And  the  remedy 
appears  from  de  Diceto  to  have  been  faithfully  applied. 

But  the  king's  own  men  were  not  allowed  to  stay  long 
from  the  royal  presence  ;  Henry  endeavouring,  by  frequently 
changing  his  delegates,  to  secure  the  best  possible  results. 


95  HISTORY  OF  PROCEDURE. 

"  Now  he  sends  out  abbots,  now  earls,  now  chaplains,  now 
men  of  his  household,  now  his  most  intimate  companions  to 
hear  and  try  causes."  Finally  he  appoints  (though  tempo- 
rarily, it  seems)  the  bishops  of  Winchester,  Ely,  and  Norwich 
as  archjusticiars  ("  archijusticiarios ")  of  the  kingdom.  By 
these  and  their  associate  judges  causes  were  decided,  certain 
matters  being  reserved,  however,  for  the  hearing  of  the  king, 
as  provided  by  the  Assise  of  Northampton  above  referred  to.^ 

Of  the  outcries  of  the  people  against  the  sheriffs,  and 
of  the  willingness  of  the  king,  for  the  moment  at  least,  to 
give  heed  to  the  same,  the  Inquest  of  Sheriffs  gives  ample 
evidence.  Upon  the  king's  return  to  England,  in  the  year 
1 170,  after  an  absence  on  the  Continent  of  four  years,  he 
holds  a  Great  Council  at  London,  and  there  in  answer  to 
general  complaint  removes  nearly  all  the  sheriffs  of  the  land, 
and  orders  them  to  give  pledges  to  answer  for  their  wrongful 
conduct.  This,  however,  was  followed  by  a  restoration  of 
some  of  the  parties  to  their  old  positions;  when  they  made 
good  their  revenge  upon  the  people.^ 

The  sheriffs  were  not,  however,  the  only  offenders.  As 
has  been  intimated,  the  king  could  not  fully  trust  his  own 
special  justiciars.  These  also  were  found  oppressing  the 
people,  and  willing  apparently  to  defraud  the  king.  We  have 
seen  that  at  the  council  of  Northampton,  in  the  year  1176, 
the  kingdom  was  divided  into  six  circuits,  with  three  justiciars 
assigned  to  each.^  But  this  arrangement  was  short-lived.  In 
the  year  1178  the  king  caused  an  inquiry  to  be  made  con- 
cerning these  judges,  if  they  had  treated  well  the  men  of  the 
kingdom.  In  answer,  he  learned  that  the  land  and  the  people 
were  sorely  oppressed  by  reason  of  the  great  number,  to  wit, 
eighteen,  of  justiciars  ;  and  it  was  upon  this  occasion  that  the 

'  These  passages  of  de  Diceto  may  be  found  in  I  Twysden,  Script.  605,  606, 
and  are  also  briefly  quoted  in  2  Benedictus,  pref.  72. 

'  riacita  Ar,£^.-Norm.  216.   See  the  entire  inquest  in  Stubbs,  Seh  Ch.  147-150. 
T  Ante,  p.  88. 


THE    COURTS.  97 

central  court  of  five  was  established.  The  passage  referred  to 
is  not  clear  upon  the  question  whether  these  justiciars  had 
been  guilty  of  misconduct;  but  they  appear  to  have  been 
removed,  and  fluctuation  in  the  justiciars  going  the  iters 
continued." 

The  Pipe  Rolls  show  that  the  itinerant  justices  were 
occupied  with  the  hearing  of  legal  causes  of  all  kinds,  and 
that  the  peculiar  process  of  the  central  King's  Court  was  in 
use  before  them. 2  Three  or  four  examples  will  suffice, 
Geoffrey  de  D.  was  accounted  as  debtor  in  three  marks  in 
the  tenth  year  of  Richard  the  First  (1198),  for  having  the 
justiciars  itinerant  inquire  in  what  manner  a  certain  recogni- 
tion was  taken  against  him  in  the  earl  of  Mortain's  court, 
during  the  war  between  the  king  and  the  earl ;  which 
recognition,  as  Geoffrey  alleged,  had  been  taken  contrary  to 
law.'^  In  the  Northampton  iter,  Walter  T.  and  his  son  John 
gave  ten  marks  in  the  first  year  of  John  (1199),  to  have 
an  inquisition  by  oath  of  the  burgesses  of  Northampton, 
to  find  certain  facts  in  issue  concerning  the  leaded  house 
of  Northampton ;  among  other  things,  if  King  Henry, 
father  of  the  present  king,  had  dismissed  the  demandants 
because  they  had  not  rendered  at  the  appointed  time  the 
anxiliiim  required  of  them.'^  In  the  Kent  iter  of  the  seven- 
teenth year  of  Henry  the  Second,  Walter,  son  of  A.,  rendered 
account  of  five  marks  for  having  a  recognition  of  the  county 
concerning  land  of  R.^  In  the  Hampshire  iter  of  the  twenty- 
second  year  of  Henry  the  Second,  William,  son  of  S.,  pro- 
mised ten  marks  for  having  a  recognition  of  certain  lands 
in  Normandy.6  These  examples  might  be  multiplied  in- 
definitel}'.  The  Assise  of  Northampton  assigns  for  the  Eyre 
recognitions  of  the  seisin  of  heirs  and  other  cases.7     And  in 

'  See  2  Benedictus,  pref.  70,  71. 

^  See  various  cases  in  Placita  Ang.-Norm.  26S-27S,  and  in  chapters  12-14 
of  Madox.  3  Madox,  Hist.  Excli.  299  (fol.  ed.).  ^  Ibid, 

5  Placita  Ang.-Norm.  271.  ''  lb.  273, 

^  Assise  North,  c.  5  ;  l  Stubbs,  Const.  Hist.  617, 

H 


93  HISTORY   OF   PROCEDURE. 

the  agenda  of  the  Eyre,  anno  1194,  besides  recognitions  in 
general,  the  ]\Iagna  Assisa  is  mentioned  as  within  the 
jurisdiction  of  the  judges,  where  the  amount  in  controversy- 
did  not  exceed  a  hundred  shiUings  ;  an  amount  raised  to  ten 
pounds  four  years  later. ^  The  whole  agenda  of  this  Eyre  of 
1 194  will  be  given  later,  in  treating  of  the  County  Court ;  to 
which  part  of  the  present  chapter  the  reader  is  referred  for 
some  further  consideration  of  the  relation  of  the  Eyre  to  the 
ancient  court  of  the  county. 

To  the  ordinary  judicial  business  of  the  Eyre,  the  "per- 
lustrantes  judices,"  as  the  judges  were  often  called,  especially 
in  the  Dialogue  of  the  Exchequer,  united  a  variety  of  duties 
pertaining  to  the  interests  of  the  king.  Indeed,  they,  with 
the  sheriffs,  were  the  king's  representatives  through  the 
counties  for  all  matters  of  the  Crown.  While  gradually,  by 
act  of  the  king,  superseding  the  sheriffs 2  in  judicial  busi- 
ness (except  in  the  ordinary  County  Court),  they  were  also 
exercising  jointly  with  them  most  of  the  duties  which  had 
formerly  been  performed  by  the  sheriffs  alone.  Among  other 
functions,  they  appear  to  have  constituted  a  sort  of  limited 
Court  of  Exchequer  for  the  county,  not,  indeed,  as  possessing 
the  functions  of  the  real  court  of  that  name,  but  as  exercising 
an  oversight  of  the  interests  of  the  treasury  in  the  counties, 
and  often  adjudicating  upon  claims  of,  if  not  against,  the 
king.  In  a  word,  using  the  term  Exchequer  in  the  modern 
sense,  as  meaning  a  judicial  tribunal,  with  jurisdiction  of 
fiscal  matters,  it  may  be  said  that  the  Eyre  was  both  the 
Court  of  Exchequer  and  the  King's  Court  for  the  counties, 
besides  having  the  consideration  of  much  business  not  of  a 
judicial  character.  The  Rotuli  Curia;  Regis  are  a  continuous 
exemplification  of  this  fact  in  both  particulars  at  the  close 
of  the  twelfth  century,  representing  also  the  greater  part  of 
the  reign  of  Henry  the  Second. 

'  I  Stubbs,  Const.  Hist.  617  ;  Scl.  Ch.  259,  260  (2d  ed.). 
^  The  gradual  limit  of  the  sheriffs'  judicial  functions,  from  the  first  half  of  the 
reign  of  Henry  the  Second,  is  traced  by  Professor  Stubbs,  i  Const.  Hist.  606,  607. 


THE    COURTS.  99 

How  far  the  causes  above  mentioned  operated  to  effect 
the  next  movement — perhaps  not  next  chronologically — in 
favour  of  the  exercise  of  the  royal  jurisdiction  in  the  country, 
to  the  degradation  of  the  local  franchises  by  one  step  further, 
is  not  altogether  clear.  The  causes  which,  through  the  Assise 
of  Clarendon,  anno  1166,  led  to  the  opening  of  the  Manorial 
Courts  for  the  visitations  of  the  sheriffs  and  the  royal  jus- 
ticiars, are  not  distinctly  stated.  The  assise  begins  with  the 
mere  statement  that  its  provisions  were  enacted  for  the  pur- 
pose of  preserving  peace  and  keeping  justice.  To  this  end 
it  was  decreed  that  inquiry  should  be  made  on  oath  in  every 
county  and  in  every  hundred,  by  twelve  legal  men  of  the 
hundred,  and  by  four  legal  men  of  every  vi  11  (manor), ^  whether 
anyone  had  been  accused  of  being  a  robber,  or  a  murderer,  or 
a  thief,  or  a  harbourer  of  robbers,  murderers,  or  thieves,  since 
the  king  was  crowned.  And  this  inquiry  was  to  be  conducted 
before  the  justiciars  (itinerant)  or  before  the  sheriffs.2  Nor 
did  the  matter  stop  here,  or  end  by  putting  the  accused  under 
bonds  to  answer  before  the  local  court :  on  the  contrary,  the 
justiciars  proceeded  to  try  and  determine  the  causes  thus 
brought  within  their  jurisdiction. 3  If,  however,  the  lord  of  a 
man  taken,  or  the  lord's  steward  or  his  men,  demanded  the 
accused  on  pledges  within  three  days,  he  was  to  be  given  up 
with  his  chattels,  until  he  made  his  law  (by  the  ordeal  .?).4 
The  next  article  of  the  statute  gives  us  a  view  of  the  division 
of  jurisdiction,  or  rather  of  function,  between  the  sheriffs  and 
the  justiciars,  showing  that,  in  ordinary  matters  at  least,  the 
duties  of  the  sheriffs  on  the  Eyre  of  the  justiciars  were 
ministerial,  and  not  judicial.  Thus  early  was  the  change 
coming  about  which  was  at  last  to  strip  the  sheriffs  of  their 
ancient  function  of  judges.     The  clause  referred  to  provided 

'  "Constantiensisepiscopus  ....  ducenas  et  octoginta  t'/Z/rt'j  (quos  a  manendo 
viamrios  vulgo  vocamus)  obtinuit." — Oideric  Vitalis. 

^  Assise  of  Clar.  c.  i.  '  lb.  c.  2  et  scq. 

*■  lb.  c.  3.  If  found  guilty,  the  accused  was  then,  it  seems,  turned  over  to  the 
justiciars  for  punishment,  who  also  probably  took  his  chattels  in  the  name  of  the  king. 

H    2 


loo  HISTORY   OF   PROCEDURE. 

that,  when  a  (person  accused  of  benig  a)  robber,  murderer,  or 
thief,  or  a  harbourer  of  such,  was  taken,  then,  if  the  justiciars 
were  not  to  come  soon  into  the  county  in  which  the  accused 
was  taken,  the  sheriff  was  to  make  the  fact  known  {inandet) 
to  the  nearest  justiciar.  The  justiciars  should  then  inform 
lyycinandabunt)  the  sheriffs  where  they  desired  that  the  accused 
should  be  brought  before  them.i  The  sheriff  should  then 
bring  them  before  the  justiciars  ;  and  two  legal  men  of  the 
hundred  and  vill  where  the  accused  were  taken  should  appear 
before  the  justiciars  to  record  (report)  the  presentment  of  the 
hundred  and  county.  And  then  the  accused  were  thus  to 
make  their  law  (the  ordeal)  "before  the  justiciars."  ~ 

The  next  article  of  the  Assise  is  important  and  emphatic 
on  the  point  of  jurisdiction.  It  declared  that  as  to  those  who 
had  thus  been  taken  under  the  oath  of  the  sixteen  men  no 
one  should  have  court  or  justice  or  chattels  except  the  king, 
in  his  own  court,  before  his  justiciars.^  But  this  was  not  all. 
The  following  article  directed  that  as  to  those  prisoners  who 
had  been  taken  otherwise  than  upon  the  oath  of  the  sixteen, 
the  sheriffs  should  still  bring  them  before  the  justiciars  with- 
out any  other  summons  ;  and  that  all  persons  accused  as 
robbers,  murderers,  or  thieves,  and  those  who  had  harboured 
them,  whether  taken  by  this  oath  or  not,  should  be  given  into 
the  custody  of  the  sheriiTs.4 

It  was  further  provided  that  all  persons  should  attend  at 
the  court  for  making  this  oath,  and  that  no  one  should  stay 

'  Tlie  original  reads  :  "  vSi  justiticc  noii  fuerint  tarn  cito  venturi  in  ilium  comi- 
tatiun  ubi  capti  fuerint,  vicecomites  w^T/^^/cfw/ propinquiori  justitia;  per  intcUigentem 
hominem,  (juod  tales  homines  [sc.  roboratores  etc.]  ceperint  ;  et  justiticc  remanda- 
bunt  vicecomitibus  ubi  voluerint  quod  illi  ducantur  ante  eos."  In  connection  with 
the  clause  "  quod  tales  homines  ceperint "—"  that  they  have  taken  such  men" — 
the  natural  meaning  is  that  the  sheriffs  "shall  report"  and  the  justiciars  "shall 
reply."  The  meaning  "  to  report  "  is  common  to  "  mandare  "  in  the  middle  ages. 
"Mandate  mihi  magnitudinem  terra?,"  Placita  Ang.-Norm.  25.  So  in  c.  17  of 
this  same  Assise. 

-  Assise  of  Clar.  c.  4.     Compare  the  agenda  of  1194,  post. 

3  II).  c.  5.     .See  Dial.  Exch.  lib.  2,  c.  10  (Stubbs,  Sel.  Ch.  225,  228). 

^  lb.  c.  6;  Assise  North,  c.  12. 


THE    COURTS.  lol 

away  by  reason  of  any  franchise,  court,  or  jurisdiction  wliicli 
he  had. J  And,  still  more  stringently,  it  was  decreed  that  no 
one  within  any  town  or  without,  not  excepting  even  the  honor 
of  WalHngford,  should  refuse  to  allow  the  sheriff  to  enter 
his  court  or  land  for  taking  the  view  of  frank-pledge.^  And 
the  same  provision  is  repeated  still  more  definitely  in  another 
article,  in  respect  of  persons  accused  of  being  robbers,  mur- 
derers, thieves,  or  the  harbourers  of  such,  and  in  respect  of 
outlaws  and  of  persons  accused  of  violating  the  king's  forest 
laws.3 

The  reason  for  the  general  and  frequent  iters  of  the 
justiciars  which  date  from  this  time  now  sufficiently  appears, 
A  jurisdiction  had  been  created  for  them,  though  at  the 
expense,  and  intended  expense,  of  the  local  franchises.  The 
uncertain  state  of  things  introduced  with  the  Conquest  by 
the  addition  of  the  disturbing  influence  of  a  court  not  to  be 
restrained  by  any  ascertainable  bounds  had  now  come  sub- 
stantially to  an  end.  The  king  had  succeeded  at  last  in 
building  up  and  establishing  a  jurisdiction  for  his  own  courts, 
not  merely  where  he  chanced  in  person  to  be,  but  in  every 
part  of  the  kingdom,  over  causes  of  all  kinds,  civil  and 
criminal,  legal  and  equitable.  The  machinery  of  the  King's 
Court,  as  fashioned  and  set  into  operation  by  Henry  the 
Second,  has  been  preserved  in  substantial  integrity  to  the 
present  day.      There  have  been  some  additions  to  it ;  but 


■  Assise  of  Clar.  c.  -  lb.  c.  9. 

3  lb.  c.  II.  See  the  whole  Assise  in  Stubbs,  Sel.  Ch.  143-146.  But  some  of 
the  franchises  held  out  against  the  entry  of  the  sheriffs.  See  the  case  of  the  liberty 
of  St.  Edmund,  Jocelyn  dc  Brakelond,  98,  99  (Camden  Soc),  anno  1202.  "Vice- 
comes,  sciens  quod  non  potuit  intrare  libertates  Sancti  yEdmundi,"  etc.  On 
another  occasion,  perhaps  anno  1191,  a  windmill  having  been  erected  by  a  neigh- 
bouring proprietor,  to  the  detriment  of  St.  Edmund,  the  abbot  addressing  the 
ofiender,  says:  "  Senex  es,  et  scire  debuisti  quod  nee  rcgi  \\q.z  justiciario  licet 
aliquid  immutare  vel  constituere  infra  bannamleucam  [the  league,  territory,  sur- 
rounding and  belonging  to  the  monastery]  sine  abbati  et  conventu." — ^Joc.  de  Brake!. 
43.  See  also  i  Rotuli  Curiae  Regis,  426,  anno  I199,  where  William  de  Braosa 
says  that  neither  king,  sheriff,  nor  justiciar  has  any  right  to  enter  his  liberty ;  and 
the  sheriff  refused  to  enter  even  under  the  king's  writ. 


io2  HISTORY   OF   TROCEDURE. 

there  have  been  few  changes  of  a  permanent  nature  until 
within  half-a-dozen  years. 

As  to  the  relation  in  which  the  Eyre  stood  to  the  popular 
courts,  or  Folkmots  as  they  arc  often  and  aptly  called,  the 
provisions  already  referred  to  of  the  Assise  of  Clarendon  show 
that  the  justiciars  itinerant  exercised  concurrent  criminal  juris- 
diction in  the  counties  with  that  of  all  the  other  courts  ;  and 
passages  in  the  Pipe  Rolls,  without  number,  show  that  this 
was  equally  true  of  civil  jurisdiction. 

The  Case  of  Geoffrey  de  D.,  referred  to  on  a  preceding 
page, I  affords  decisive  evidence  of  the  revisory  jurisdiction 
of  the  Eyre  over  causes  tried  in  the  franchise  courts ;  the 
judgment  of  the  court  of  so  powerful  a  man  as  the  earl  of 
Mortain,  the  king's  brother  John,  being  there  made  the  sub- 
ject of  inquiry.  Nor  is  there  any  reason  to  suppose  that  the 
statements  of  Glanvill  concerning  appeals  from  the  local, 
through  the  County,  to  the  King's  Court,^  mean  that  litigants 
in  the  country  must  pass  by  the  Eyre  in  appeals,  and  carry 
their  causes  from  the  provincial  courts  directly  to  the  central 
court  of  the  king.  The  Eyre  itself  was  often  called  the 
County  Court,  and  was  doubtless  included  in  it  by  Glanvill. 
The  familiar  practice  of  later  times  probably  had  its  begin- 
ning with  the  establishment  of  the  judicial  iters.  The  king's 
tenants  in  chief  could  perhaps  refuse  to  go  before  the  jus- 
ticiars itinerant ;  but  the  causes  and  appeals  of  all  others 
were  certainly  entertained  by  them.-' 

It  only  remains  to  say  that  the  coming  of  the  justiciars 

'  Ante,  p.  97. 

-  Glanvill,  lib.  12,  cc.  I,  7.  Glanvill  merely  says  that  the  causes  may  be  trans- 
ferred "ad  capitalcm  curiam  domini  regis;"  as  was  done  in  the  case  of  John  the 
Marshal,  Placita  Ang.-Norm.  212. 

-^  The  superior  jurisdiction  of  the  justiciars  itinerant  is  spoken  of  as  matter  of 
course  by  Jocelyn  de  Brakclond,  p.  100,  anno  1202.  "  Comitatus  vero  posuit 
loquelam  in  respectum  uscjue  coram  justiciariis  crrantibus."  See  also  I  Stubbs, 
Const.  Hist.  607.  The  tenants  of  escheated  honors,  who  were  bound  to  attend 
the  visitation  of  the  justiciars,  did  not  by  the  escheat  become  tenants  in  capite  of 
the  king. — Dialogue  of  the  Exchequer,  lib,  2,  c.  24;  Magna  Charta,  c.  43; 
I  Stubbs,  Const.  Hist.  401. 


THE    COURTS.  I03 

into  the  counties  was  announced  to  the  sheriffs  in  advance, 
and  that  they  proceeded  thereupon  to  summon  the  county  ;  all 
freemen  being  required  to  attend,  including,  as  we  have  seen, 
those  who  were  exempt  by  special  franchise  from  attendance 
upon  the  popular  courts.  The  court,  therefore,  though  a  court 
of  the  county,  was  not  the  ancient  Shiremot.  The  latter  court, 
indeed,  still  had  its  own  sessions,  but  it  was  bound  to  give 
way  to  the  superior  jurisdiction  of  the  king's  justiciars,  in  case 
their  visitation  occurred  at  the  time  for  the  session  of  the 
ancient  court. 

TJie  Exchequer. 

The  Exchequer,  as  it  existed  throughout  the  twelfth  cen- 
tury, was  the  work,  largely,  of  Roger,  bishop  of  Salisbury  and 
treasurer  to  Henry  the  First,  so  far  as  its  fiscal  character  and 
incidents  are  concerned.  It  became  gradually,  to  a  limited 
extent,  a  court  for  the  trial  of  common  pleas  in  addition  to 
its  chief  function  ;  or  rather  the  trial  of  common  pleas  came 
to  be  permitted  before  the  Exchequer.  But  it  is  improbable 
that  this  was  any  part  of  the  scheme  of  its  famous  reorganiser. 

Of  the  existence  of  some  institution,  prior  to  the  reign  of 
Henry  the  First,  for  the  regulation  of  matters  of  the  royal 
revenues  we  might  be  certain  even  if  the  records  of  the  time 
did  not  tell  us  of  a  Thesaurium  ;  but  as  to  details  concern- 
ing the  machinery  and  working  of  the  same,  we  are  left  in 
comparative  ignorance. 

The  Dialogue  of  the  Exchequer,  written  in  the  year  1177, 
by  Richard,  bishop  of  London,  grand  nephew  of  the  re~ 
organiser  of  the  court,  himself  also  treasurer  to  the  king,  is 
the  great  storehouse  of  information  concerning  the  court  of 
Roger  ;  and  that  gives  us,  also,  some  information  of  the  pre- 
decessor of  the  Exchequer,  the  Treasury,  and  of  the  causes 
which  led  to  the  substitution  of  the  better  machinery.  The 
author  says'  that,  according  to  the  report  of  the  fathers,  silver 

'  Dialogue   of  the   Exchequer,    lib.    i,    c.    7  ;    Stubbs,    Sel.   Ch,    193.       The 
Dialogue  is  to  the  Exchequer  ■what  Glanvill  is  to  the  King's  Court. 


io4  HISTORY   OF   PROCEDURE. 

and  gold,  in  the  primitive  state  of  the  kingdom  after  the 
Conquest,  were  not  paid  by  the  tenants  to  the  king  from  the 
royal  manors  (the  old  folkland)  but  provisions  only ;  out  of 
which  the  necessities  of  the  royal  household  were  supplied. 
And  persons  were  deputed  to  ascertain  how  much  should  be 
furnished  from  each  estate.  But  for  the  purpose  of  money 
payments  to  be  made  by  the  king,  gold  and  silver  were  paid 
by  reason  of  pleas  and  offerings  ("  conventiones  "i)  had  in  the 
kingdom,  and  from  the  cities  and  towns  in  which  agriculture 
was  not  practised. 

This  institution,  the  author  continues,  lasted  throughout 
the  reigns  of  the  Conqueror  and  of  Rufus  ;  and  he  adds  that 
he  himself  had  known  men  who  had  seen  provisions  brought, 
in  the  eleventh  century,  from  the  royal  estates  to  the  court. 
The  officers  of  the  royal  house  brought  in  a  certain  amount  of 
wheat  from  every  county  ;  and  from  every  county  divers 
kinds  of  meat,  fodder  for  horses,  and  other  necessaries  were 
due.  These  were  paid  in  upon  an  established  modus  for  each 
article  ;  the  royal  officers  computing  the  matter  to  the  sheriff 
(who  had  brought  the  articles)  by  reducing  their  value  to  a 
money  basis  ("  in  summam  denariorum  ") ;  for  a  quantity  of 
wheat,  e.g.  for  bread  for  a  hundred  men  (daily  ">),  one  shilling  ; 
for  an  ox  pascualis,  one  shilling  ;  for  a  ram  or  sheep,  four 
pence  ;  for  provender  of  twenty  horses,  four  pence. 

Afterwards,  when  the  king  (the  sequel  shows  that  Henry 
the  First  is  meant)  found  it  necessary  to  put  down  warlike 
uprisings  on  the  Continent,  there  arose  the  greatest  need 
of  money  to  accomplish  his  objects.  In  the  meantime  a 
multitude  of  complaints  from  the  tenants  reached  the  King's 
Court,  or,  what  to  the  king  Avas  more  annoying  still,  plough- 
shares were  frequently  offered  to  him  in  his  journeyings  as  a 
sign  of  the  failing  of  agricultural  industry.  The  people  com- 
plained of  being  oppressed  by  infinite  demands  for  provisions. 
Influenced  by  these  complaints,  the  king  took  counsel  of  his 

I  '  Wliat  these  were  will  be  seen  Inter. 


THE    COURTS.  105 

great  men,  and  appointed  persons  of  prudence  and  discretion 
through  the  kingdom  to  go  about  and  make  inquiry  at  each 
of  the  estates,  making  a  computation  of  the  amount  of  pro- 
visions which  was  being  required,  and  reducing  the  same  to  a 
money  value.  For  the  total  sum  which  arose  from  all  the 
estates  in  any  county,  these  persons  now  ordered  that  the 
sheriff  of  that  county  should  be  held  to  account  at  the 
Exchequer  ("  ad  Scaccarium  ")  ;  from  which  expression  alone 
it  would  appear  that  this  was  during  the  reign  of  Henry  the 
First,  before  whose  time  that  name  was  not  used,  at  least  in 
England. I  It  was  further  decreed  that  the  sheriff  should  pay 
"  ad  scalam,"  for  every  pound  of  money  value,  six  pence.  It 
was  soon  found  necessary  further  to  decree  that  the  ferm 
of  the  manors  should  be  paid  not  only  "  ad  scalam,"  but  also 
"  ad  pensum,"  because,  it  seems,  of  the  clipping  of  the  money. 
This  mode  of  accounting  was  retained  in  the  Exchequer  for 
several  years.  Hence,  says  the  author  of  the  Dialogue,  from 
whom  we  continue  to  translate,  it  will  often  be  found  written 
in  the  ancient  rolls  of  that  king  ("regis  illius  ")  "  in  thesauro  c. 
libras  ad  scalam  [liberavit],  vel,  in  thesauro  c.  libras  ad  pensum." 
Meanwhile,  adds  the  writer,  a  prudent  man,  foreseeing  in 
counsel,  discreet  in  speech,  and  in  all  great  matters  of  business 
especially  distinguished,^  was  called  by  the  same  king  to  his 
court ;  who  growing  in  favour  with  the  king,  the  clergy,  and 
the  people,  was  made  bishop  of  Salisbury,  and  received  the 
highest  honours.  He  had  very  great  knowledge  concerning 
the  Exchequer,  and  it  was  clear  from  the  rolls  themselves 
that  the  Exchequer  flourished  very  greatly  under  him.  The 
Dialogue  then  proceeds  with  the  reforms  instituted  by  Roger 
in  respect  of  the  kind  of  payment  made  by  way  of  revenue  ; 
especially  the  testing  of  the  money  by  melting  it. 

^  See  I  Slubbs,  Const.  I  list.  377,  note,  378,  note. 

-  Before  his  accession  to  the  throne,  the  king  is  said  to  have  been  first  struck 
with  the  expeditiousness  of  Roger,  while  a  clerk  near  Caen,  in  saying  the  mass,  and 
at  once  called  him  to  be  his  chaplain. — William  of  Newburgh,  144  ;  William  of 
Malmesbury,  Gesta  ]\eg.  pp.  441,  442,  note  (Bohn). 


io6  HISTORY   OF   PROCEDURE. 

This  is  all,  or  nearly  all,  we  know  of  the  Treasury  ;  but  it 
is  sufficient  to  indicate  that  the  efforts  of  Roger  were  devoted 
mainly  to  reforms — to  making  the  existing  machinery  more 
effective  than  he  found  it — rather  than  to  the  creation  of  a 
new  system  of  finance.  There  had  been  a  central  court  of 
the  Jisc//s  in  the  eleventh  century,  composed  of  royal  officers 
("  regii  officiales  "),  as  there  was  in  the  twelfth  century,  under 
Roger's  reforms ;  and  to  this  body  the  sheriffs,  then  as  after- 
wards the  taxgatherers,  made,  as  they  did  in  the  time  of 
Henry  the  First  and  Henry  the  Second,  their  report  and 
received  their  discharge  or  not  according  to  the  particular 
case.  There  is  every  reason  to  suppose,  also,  that  the  court 
acted  judicially,  and  not  merely  as  a  body  of  auditors,  as 
well  before  the  time  of  Roger  as  afterwards.  Through  this 
Treasury  of  the  first  Norman  kings  the  Exchequer  of  Henry 
the  First  is  thought  to  have  unbroken  connection  with  the 
Anglo-Saxon  Hord  ;  one  of  the  special  features  of  the 
Exchequer,  the  blanch -ferm,  being  the  result  of  a  state 
of  things  peculiar  to  the  ancient  monetary  system  of  the 
kingdom.^ 

Concerning  the  Exchequer  of  Roger  our  information  is 
ample.  The  Dialogue  goes  into  minute  details.  Not  only 
is  the  meaning  of  the  term  "  Scaccarium  "  unhesitatingly 
given,  the  familiar  one  of  the  cJiajuered  cloth  with  the  game 
of  chess,2  but  speaking  of  it  physically,  it  is  described  as 
a  table,  whose  precise  dimensions  are  stated,  and  the  fact 
mentioned  that  it  was  surrounded  by  a  rim  of  a  certain 
height,  to  prevent  the  treasure  from  falling  off.  Whatever 
was  done  by  common  counsel  at  this  table  was  said  to  have 


*  See  Slapleton's  Introd.  to  the  Norman  Exchequer  Rolls  ;  i  Stubbs,  Const, 
lliht.  378,  note.  The  blanching,  as  described  in  the  Dialogue,  was  the  testing  of 
the  money  by  fire,  a  thing  unknown,  it  is  said,  in  Normandy,  and  introduced  into 
England  in  consequence  of  the  monetary  system  of  the  Anglo-Saxons.  The 
German  writers  have  thought  the  Exchequer  a  bodily  importation  from  Normandy. 
I  Gneist,  Verwalt.  194,  201  ;  Brunner,  Schwurg.  154. 

-   "Scaccarium  lusilc,"  Dialogue,  lib.  i,  c.  i  ;   Stubbs,  Scl.  Ch.  171  (2d  ed.). 


THE   COURTS.  107 

been  done  "ad  Scaccarium,"  as  formerly  it  was  said  to  have 
been  done  "ad  Taleas,"  at  the  TalHes.  The  Dialogue  informs 
us  that  in  another  sense  the  Exchequer  was  composed  of  an 
upper  and  a  lower  room  ;  the  table  being  situated  in  the 
former,  around  which  sat  the  court,  while  the  lower  room  was 
used  for  purposes  of  testing  the  money.  The  order  of  sittings 
about  the  tabic  is  also  described,  with  the  official  names  of 
the  occupants,  and  the  order  of  precedence. 

Inquiring  as  we  are  into  the  judicial  aspects  of  the  Ex- 
chequer, the  membership  of  the  court  is  the  only  one  of  these 
curious  details  with  which  we  are  concerned.  The  presiding 
and  in  all  respects  most  distinguished  officer  of  the  body  was 
the  king's  justiciar  ;  that  is  to  say,  when  the  king  himself  was 
not  present.  He  (the  justiciar)  sat  at  the  head  of  the  table. 
First,  at  his  left,  sat  the  chancellor,  "  ratione  officii,"  if  he 
happened,  says  the  Dialogue,  to  be  present.  Next  to  the 
chancellor  sat  the  constable ;  after  him  two  chamberlains ; 
and  next  came  the  marshal.  When  these  were  absent,  others 
sometimes  took  their  place  ;  and  sometimes  even  when  they 
were  present  the  king  deputed  others  to  sit  in  precedency  of 
them.  This  completed  the  first  of  the  four  sittings  or  sides 
of  the  room.  At  the  head  of  the  left  side  of  the  table  sat  the 
clerk  or  other  servant  of  the  chamberlains,  with  counter  tallies 
"  de  recepta."  Then,  after  seats  for  certain  ones  who  did  not 
sit  ex  officio,  but  were  specially  delegated  by  the  king,  there 
was  a  place  in  the  middle  of  the  side  for  the  one  who  put  in 
position  the  matters  of  account  for  the  counters.  Other  per- 
sons, not  ex-officio  members,  followed  ;  and  then  at  the  end 
of  the  seat,  the  principal  secretary  ("  clericus  qui  scriptorio 
praiest").  At  the  right  side  of  the  chief  justiciar,  next  to 
him,  sat  (at  this  time)  the  bishop  of  Winchester,  not  ex  officio, 
but  by  a  new  law ;  so  that  he  might  be  next  to  the  treasurer 
and  carefully  scrutinise  the  waiting  of  his  roll ;  the  document 
to  which  is  given  the  name  of  Pipe  Roll,  or  Roll  of  the  Pipe, 
from  its  form.     Next  sat  the  treasurer  at   the  head   of  the 


io8  HISTORY   OF    PROCEDURE. 

right-hand  side  scat,  whose  duty  it  was  to  exercise  most 
dihgent  care  over  all  that  was  done,  as  being  the  person  to 
render  account  to  the  king  if  need  were.  His  clerk  sat  next, 
acting  as  writer  of  the  roll  of  the  treasurer.  Then  another 
scribe,  the  writer  of  the  chancellor's  roll,  and  then  the  chan- 
cellor's clerk,  who  looked  diligently  to  sec  that  his  own 
answered  to  the  other  (the  treasurer's  roll)  in  all  respects,  so 
that  not  an  iota  might  be  wanting  ("  ut  nee  iota  unum  desit  "). 
At  the  end  of  this  seat  sat  the  constable's  clerk,  a  great  man, 
full  of  business  in  the  King's  Court,  but  holding  office  also 
here,  acting  either  in  his  own  person,  or,  if  the  king  needed 
him  elsewhere,  by  a  discreet  clerk.  At  the  head  of  the  fourth 
side  of  the  table,  opposite  the  justiciar,  sat  (at  this  time) 
master  Thomas  Brown  ("Brunus"),  with  a  tliird  rolV  who 
also  had  been  added  by  a  new  law,  "hoc  est,"  adds  the 
author  of  the  Dialogue,  "  a  domino  rege  nostro,"  a  man  of 
great  skill,  whom  the  king  had  brought  from  Sicily.  Next 
to  him  sat  the  sheriffs  and  their  clerks,  prepared  with  tallies 
and  other  necessary  things,  to  render  their  accounts. 

Such  in  outline  was  the  court  which  exercised  at  the 
same  time  judicial  and  supervisory  powers  over  the  returns 
of  the  government  revenues.  A  more  particular  description 
of  the  special  functions  of  each  of  these  officers  follows. 
The  chancellor  was  first  in  rank  of  those  on  the  left  of  the 
justiciar,  as  his  seat  would  indicate  ;  and  he,  we  are  told,  was 
a  great  man  both  in  the  Exchequer  and  in  the  King's  Court, 
commonly  spoken  of  in  the  Dialogue  as  The  Court.  Without 
his  consent  no  important  business  could  be  transacted  ;  but 
this  was  true  (only  .'')  while  he  sat  in  the  Exchequer.  The 
custody  of  the  king's  seal,  kept  in  the  treasury,  belonged  to 
him ;  and  so  did  the  custody  of  the  second  roll  above- 
mentioned.  In  case  of  a  mistake  by  the  treasurer  the 
chancellor  or  his  clerk  could  correct  him,  but  if  the  treasurer 

'  The  reason  for  having  Ihrcc  rolls  was  expressed  by  ihc  proverb,  "  Funiculus 
triplex  difficile  solvitur." 


THE    COURTS. 


109 


should  refuse  to  make  a  change,  the  matter  must  be  brought 
for  argument  and  decision  before  the  barons. 

The  constable's  position  at  the  Exchequer  was  that  of  a 
witness,  with  the  justiciar,  of  the  writs  issued  from  the 
treasury  and  of  certain  of  the  accounts  for  those  who 
rendered  them  ;  for,  it  was  said,  there  ought  to  be  two  sub- 
scribing witnesses  to  all  writs  of  this  kind,  according  to 
ancient  usage  ("ex  antiqua  institutione").  In  this  particular 
the  practice  of  the  Exchequer  differed  from  that  of  the 
King's  Court,  and  the  greater  importance  attaching  even  in 
the  latter  quarter  of  the  twelfth  century  to  the  proceedings  of 
the  fiscus  than  to  those  of  a  court  of  general  litigation 
strikingly  appears.  The  constable,  with  his  clerk  and  the 
marshal,  also  attended  to  the  payment  of  the  stipendiaries, 
and  had  various  other  duties  of  no  legal  interest. 

The  marshal  among  other  things  had  charge  of  the 
tallies'  and  of  the  king's  writs  "de  computandis,  vel  per- 
donandis  [i.e.  discharges],  vel  dandis,"  as  to  things  required 
of  the  sheriffs  by  summons.  If  a  debtor  was  to  be  taken 
into  custody  for  not  satisfying  the  summons  upon  him,  he  was 
given  into  the  hands  of  the  marshal,  and  when  the  court 
adjourned  for  that  day  the  marshal  might  put  him  into  the 
public  prison  ;  but  the  debtor  was  not  to  be  put  in  chains  or 
thrust  into  the  lowest  place,  but  placed  by  himself  or  "  supra 
carcerem."  It  also  belonged  to  the  marshal,  after  the  account 
of  the  sheriff,  or  "custos,"  or  other  person  srtting  at  the 
accounts,  was  passed,  to  receive  in  public  the  party's  oatli, 
that  he  had  rendered  an  honest  account,  according  to  his 
conscience.  If  the  person  accounting  was  still  held  by  any 
debt,  he  added  that  he  would  not  depart  from  the  Exchequer, 
which  was  said  to  mean  the  league  ("  leugata  ")  of  the  town 
in  which  it  was  sitting,  unless  to  return  on  the  same  day, 
without  permission    of   the   barons.      He  also    receiv^ed    the 

'  What  the  tally  sticks  were,  see  Madox,  Ilist.  Exch.  70S  (fol.  ed.) ;  i  Stubbs, 
Const.  Hist.  379;  Dialogue,  Stubbs,  181,  1S2  (2d  ed.). 


no  HISTORY   OF   PROCEDURE. 

summonses  made  to  the  next  term  of  the  Exchequer,  signed 
"a  latere  sigilH  regii,"  and  dcHvercd  them  to  the  usher  of  the 
upper  room,  to  be  sent  through  the  country. 

The  treasurer's  duties  were  of  course  of  the  highest 
importance.  So  far  as  the  present  inquiry  is  concerned  with 
them,  they  began  with  receiving  the  accounts  of  the  sheriffs. 
The  treasurer  and  the  sheriff  were  indeed  the  chief  players 
in  the  game  of  chess.  When  the  court  was  assembled 
the  treasurer  inquired  if  the  sheriff  was  prepared  to  render 
his  account.  If  he  answered,  "  I  am  ready,"  the  treasurer 
said:  "Tell  us  then,  in  the  first  place,  if  the 'eleemosynaj, 
decimse,  liberationes'  have  been  attended  to,  and  if  given 
[named]  lands  stand  as  in  the  last  year.''  If  the  sheriff 
answered  in  the  affirmative,  the  treasurer's  secretary  followed 
carefully  the  roll  of  the  last  year  for  the  purpose  of  writing 
down  the  appointed  matters,  the  treasurer  looking  on  to  see 
that  the  hand  of  the  writer  made  no  mistake.  These  things 
having  been  attended  to,  the  treasurer  inquires  of  the  sheriff 
if  he  has  expended  anything  of  the  ferm  of  the  county 
under  the  king's  writ,  in  addition  to  the  established  matters. 
Whereupon  the  sheriff  delivers  to  the  chancellor's  clerk,  one 
by  one^  the  writs  sent  him  by  the  king,  and  the  clerk,  as  he 
reads  them  openly,  delivers  them  to  the  treasurer,  that  he 
may  put  the  proper  words,  according  to  the  form  of  the 
writs,  for  the  writing  of  his  roll ;  for,  as  the  Dialogue  states, 
the  treasurer  prescribed  the  language  to  be  used,  and  the 
other  secretaries,  as  well  as  his  own,  received  the  same  from 
him.  As  to  this  matter,  the  treasurer  had  to  take  great  care 
not  to  discharge  some  one  who  was  still  liable,  or  to  make 
one  liable  who  ought  to  be  discharged  ;  for  such  was  the 
authority  of  his  roll  that  it  was  not  lawful  to  contradict  or 
change  it,  except  in  a  case  of  manifest  error,  patent  to  all. 
Nor  ought  it  to  be  changed  unless  by  the  common  counsel 
of  all  the  barons,  and  during  the  same  term  of  the  court. 
After  the  adjournment  of  the   court  it  was   not   lawful   for 


THE   COURTS.  Ill 

anyone  except  the  king  (who  in  this  matter  could  do  what 
he  pleased,  "cui  super  his  licent  qua^cunque  libent")  to 
change  the  writing  of  a  roll  of  the  last  or  even  of  the  present 
year. 

The  roll,  it  will  thus  be  observed,  became  res  judicata  at 
the  close  of  the  term,  beyond  the  recall  of  the  court  itself; 
but  the  king  had  the  power  afterwards,  like  a  modern  judge 
in  equity,  except  that  he  acted  at  his  will  (a  fact  which 
everywhere  reappears  in  matters  judicial  until  the  thirteenth 
centur}',  and  should  be  sufficiently  observed),  to  order  a 
change  of  the  record.  There  was  no  situation  in  which  the 
kingdom  was  without  the  principle  of  equity. 

It  pertained  to  the  chancellor's  secretary  to  write  the  writs 
of  the  king  that  issued  from  the  Treasury  concerning  those 
things  which,  by  the  consideration  of  the  barons  during  the 
sitting  of  the  Exchequer,  ought  to  be  paid  out  by  the  treasurer 
and  chamberlains,  but  not  the  general  writs  de  computandis  or 
perdonandis.  It  was  his  duty  also,  when  the  sheriff's  accounts 
were  passed,  and  the  debts  due  the  king  taxed,  concerning 
which  summonses  were  required,  to  write  the  summonses 
carefully  for  transmission  throughout  the  kingdom. 

The  chancellor's  clerk  had  similar  duties  in  many  respects 
to  those  of  the  treasurer.  He  might  correct  the  mistakes  of 
the  treasurer,  as  has  been  observed  ;  and  his  first  duty  was  to 
follow  the  treasurer  in  everything  done  in  the  court,  especially 
in  the  matter  of  the  writing  of  the  rolls  and  writs.  He 
carefully  watched  the  writing  of  his  secretary  to  prevent 
mistakes,  and  scrutinised  diligently  the  roll  of  each  year  until 
satisfaction  had  been  made  by  the  sheriff  concerning  the  debts 
there  stated,  for  which  he  was  summoned.  Then,  as  has  been 
stated,  when  the  sheriff  was  ready  to  account  for  what  he  had 
done  by  virtue  of  special  writs  of  the  king,  the  clerk  received 
from  him  the  king's  writ  of  summons,  and  pressed  him  con- 
cerning the  debts  named  therein,  saying  :  "  Render  account 
to  such  an  amount  of  this  or  that."     He  now  cancels  debts 


112  HISTORY   OF   PROCEDURE. 

paid  in  full  by  drawing  a  line  through  them.     He  was  also 
charged  with  correcting  and  sealing  the  writs. 

The  constable's  clerk  was  an  important  officer  In  the 
King's  Court  as  well  as  in  the  Exchequer.  He  took  part 
with  the  great  men  in  the  most  important  matters,  and  the 
king's  business  was  transacted  with  his  consent.  It  was  his 
duty  to  go  to  the  Exchequer  for  the  king  with  the  counter- 
writs  ("  contrabrevia,"  copies,  after  the  service  of  the  originals), 
concerning  those  matters  only  which  had  been  transacted  in 
the  court ;  for  the  fines  imposed  in  the  King's  Court  were  to 
be  accounted  for  in  the  Exchequer. 

Little  of  legal  interest  attaches  to  the  other  officers,  except 
perhaps  the  usher.  The  duties  of  this  officer  are  for  the  most 
part  sufficiently  indicated  by  his  title  ("ostiarius,"  doorkeeper). 
But  some  of  his  ordinary  duties  were  connected  with  the  inner 
working  of  the  court  ;  which  the  author  of  the  Dialogue 
proceeds  to  state.  The  barons,  we  are  told,  were  wont  to  go 
to  the  usher  whenever  a  doubtful  question  was  proposed 
before  them,  to  be  admitted  to  a  private  room  where  the 
matter  could  be  considered  by  them  alone,  and  also  so  that 
the  taking  of  the  accounts  might  not  be  hindered  in  the 
meantime.  Here,  it  is  to  be  presumed  (if  not  generally,  in  the 
Dialogue),  we  are  to  understand  by  the  "barons"  the  judges, 
to  the  exclusion  of  the  merely  ministerial  officers,  who  may 
be  considered  in  part  as  auditors  of  the  accounts.  And  this 
is  confirmed  by  the  statement  that  to  them,  that  is,  to  these 
barons,  was  referred  every  question  which  arose.  This  appears 
to  furnish  not  only  good  ground  for  asserting  as  to  fiscal,  not 
to  speak  of  other  matters,  a  division  of  functions  into  auditorial 
and  judicial — as  to  which  indeed  there  could  be  no  doubt- 
but  also  the  general  basis  for  the  division,  in  respect  of 
personnel.  And  on  this  division  of  functions,  the  final  separation 
of  the  body  into  a  fisats  solely  and  a  judicial  tribunal  took 
place.  The  name  "barons"  was  always  retained  by  the 
judges  ;  but  that  is  merely  an  historical  fact. 


THE    COURTS. 


"3 


The  usher  further  received  the  summonses  which  were 
made  and  signed  by  the  marshal,  as  has  been  stated  ;  and 
when  the  session  was  adjourned  for  the  term,  he  served  them 
either  in  person  or  by  some  faithful  messenger  throughout  the 
land.  He  also  convened  the  sheriffs,  by  orders  from  the 
justiciar,  when  they  were  wanted. 

The  judicial  feature  of  the  Exchequer  as  such  was  peculiar. 
What  has  already  been  said  is  sufficient  to  indicate  this.  But 
this  was  not  all.  The  procedure  throughout  had  its  special 
aspects,  which  found  no  perfect  counterpart  in  the  other 
courts  either  in  the  twelfth  century  or  in  later  times.  The 
sheriff  or  other  party  bound  to  account  was  proceeded  against 
as  a  debtor  to  the  king ;  and  it  might  very  naturally  be 
supposed  that  the  constantly  recurring  causes  of  this  kind, 
with  the  writs  "  of  course  "  which  attended  them,  making  such 
actions  of  debt  probably  far  more  familiar  to  the  judges  than 
the  corresponding  actions  in  the  other  courts,  would  have  led, 
if  not  to  a  substitution  of  the  procedure  of  the  Exchequer  in 
debt,  at  least  to  a  modification,  under  the  hands  of  the  judges, 
of  the  popular  procedure.  But  nothing  of  this  sort  appears 
to  have  taken  place,  and  the  other  courts — so  strong  was  the 
hold  of  custom — continued  to  use  the  ancient  procedure,  as  if 
the  Exchequer  were  not  in  existence.  Indeed,  when  the 
Exchequer  itself  emerged  somewhat  later  into  a  court  for  tlie 
trial  of  litigated  causes,  including  common  pleas,  it  was  with 
the  procedure  of  the  Folkmot  and  the  King's  Court. 

The  procedure  against  a  party  bound  to  account  for  the 
ferm  of  a  county  or  burgh  began  by  a  summons,  the  writ  of 
debt  of  the  Exchequer.  No  one  was  bound  to  come  to  court 
as  a  debtor  to  the  Crown  unless  summoned  by  a  writ  bearing 
"  the  image  of  the  royal  authority ; "  and  some  came,  says 
the  Dialogue,  to  sit  and  judge,  others  to  pay  and  be  judged. 
The  barons  came  as  judges  ex  officio,  or  by  special  command 
of  the  king ;  while  the  sheriffs  and  many  others  came  to  pay 
and  be  judged,  some  to  make  voluntary  offerings  (for  having, 

I 


114  HISTORY   OF  PROCEDURE. 

hastening,  or  delaying  justice  in  the  other  courts),  some  to 
make  necessary  payments.  And  it  was  essential  in  every 
summons  to  state  how  much  was  (deemed  to  be)  due  at  the 
instant  term,  with  the  "cause  "  thereof;  as  "have  this  or  that 
sum,  for  this  or  that  cause."  No  demand,  as  a  rule,  could  be 
made,  for  example,  of  a  sheriff  concerning  anything  due  from 
any  debtor  in  his  county  concerning  whom  no  mention  was 
made  in  the  writ  of  summons,  though  there  were  payments 
which  the  sheriff  had  to  provide  and  account  for,  as  to  which 
the  summons  was  silent. 

Summons  to  a  sheriff  was  made  by  a  writ  in  the  following 
form,  the  writ  of  debt  above  referred  to  :  "  H.  rex  Anglorum, 
illi  vel  illi  vicecomiti,  salutem.  Vide  sicut  tcipsum  et  omnia 
tua  diligis,  quod  sis  ad  Scaccarium  ibi  vel  ibi,  in  crastino 
Sancti  Michaelis,  vel  in  crastino  clausi  Paschal,  et  habeas  ibi 
tecum  quicquid  debes  de  veteri  firma  vel  nova,  et  nominatim 
ha^c  debita  subscripta  ;  de  illo  x.  marcas  pro  hac  causa,  et  sic 
deinceps."  ^  Then  followed  a  category  of  all  the  debts 
seriatim,  with  the  causes,  as  contained  in  the  great  annual 
roll  heretofore  mentioned ;  and  to  these  items  there  were 
added  from  the  lesser  rolls  of  the  itinerant  justices  all  that 
was  enrolled  as  due  through  the  counties  and  taxed  a 
majoribus.  All  these  being  put  down  in  order,  the  writ  for- 
mally closed  with  these  words :  "  Et  haic  omnia  tecum  habeas 
in  denariis,  taleis,  et  brevibus  et  quietantiis,  vel  capientur  de 
firma  tua  ;  teste  illo  vel  illo,  ibi  ad  Scaccarium." 

How  the  sheriff  appeared  and  was  addressed  by  the 
treasurer  as  to  the  appointed  alms,  tithes,  and  liveries,  which 
appear  not  to  have  been  set  out  in  the  writ  (such,  of  course, 
not  being  debts,  but  payments  made  by  him),  has  been  stated. 
Then  he  is  asked  by  the  treasurer  what  moneys  he  has 
expended  under  special  writs  of  the  king ;  which  matters 
also,  it  seems,  were  not  contained  in  the  writ  of  summons. 
Having  answered  this  question  and  produced  his  vouchers 

'  Dialogue  of  the  Exchequer,  lib.  2,  c.  i  ;  Stubbs,  Scl.  Ch.  211  (2J  ed,). 


THE    COURTS. 


"5 


(the  king's  writs)  and  such  other  evidence  of  the  payments 
as  the  case  required,  and  proceeded  similarly  Avith  certain 
other  items,  the  writ  of  summons  is  finally  reached,  with 
which  alone  we  are  now  concerned.  Of  the  items  charged  in 
the  summons,  that  concerning  pleas  and  conventions  ("de 
placitis  et  conventionibus  " ),  the  last  item  of  all,  shows  fully 
the  procedure.  The  chancellor's  clerk  now  takes  the  writ 
(the  treasurer  apparently  having  had  it  before  him,  for  the 
preceding  items)  and  presses  ( "  urget  " )  the  sheriff  concerning 
each  charge  set  down,  saying  :  "  Reddc  [compotum]  de  illo  x. 
libras ;  pro  hac  causa."  This,  of  course,  answers  to  the 
count  in  an  ordinary  action  for  debt.  The  sheriff's  answer 
is  usually  a  confession  and  payment  in  whole  or  in  part,  and 
is  written  down  by  the  clerk  accordingly,  thus  :  "  N.  reddit 
compotum  de  x.  1,  pro  hac  causa."  In  some  cases  his  answer 
to  the  demand  would  be  that  he  had  been  discharged  by  writ 
of  the  king,  which  would  be  produced  ;  and  then  the  entry 
was,  "N.  reddit  compotum  de  x.  1.,"  adding  the  cause,  and 
concluding,  ''Per  breve  regis  ipsi  N.  x.  1.,  et  quietus  est."  In 
other  cases  it  was,  "  In  perdonis  per  breve  regis "  so  much 
"  et  debet "  so  much. 

In  some  cases  it  happened  that  the  sheriff  had  not  collected 
the  tax  due  from  a  particular  person  ;  and  he  was  allowed  to 
plead  the  fact  if  he  could  explain  it.  If  he  answered  that  he 
had  made  diligent  but  ineffectual  search  for  goods  of  the 
person  in  question,  the  treasurer  would  say,  "  Be  careful,  for 
you  must  make  oath  of  this  matter,"  and  adding,  "When 
you  have  given  the  oath,  you  shall  confirm  it  corporalitery  ^ 
But  if  the  sheriff  replied,  "  I  am  ready,"  the  taking  of  the 
oath  was  postponed  to  the  end  of  the  accounting,  when  in  any 
case  he  was  bound  to  swear  the  truth  of  his  answers. 

Such  was  the  course  of  proceeding  in  a  typical  case  in  the 
Exchequer  as  d^Jisais.  In  form  it  differed  widely  from  a  plea 
of  debt  in  the  King's  Court ;  but  yet  not  so  much  in  substance. 

'  This  probably  refers  to  the  ceremony  of  the  oath.     Comp.  pp.  I20,  I2i. 

I     2 


ii6  HISTORY   OF  PROCEDURE. 

The  sheriff  is  summoned  into  court  by  his  creditor,  the  king, 
for  a  variety  of  debts  due  by  him  as  collector  of  the  revenue  ; 
each  one  of  which  may  be  taken  as  a  separate  legal  demand. 
The  defendant  confesses  judgment  as  to  one,  pleads  the  king^s 
own  discharge  as  to  another,  and  affirms  as  to  a  third  that  by 
the  exercise  of  all  reasonable  diligence  he  was  unable  to  collect 
the  sum  charged.  And  then,  to  establish  the  truth  of  any 
defence,  such  as  the  last,  he  makes  oath  and  offers  to  prove 
the  same  "  corporaliter."  This  entitles  him  to  a  discharge,  so 
long  as  there  is  no  such  evidence  against  him  as  to  bar  him . 
from  giving  the  oath,  and  no  one  appears  to  contest  it  with 
an  offer  of  the  duel.  The  chief  difference  in  substance  between 
this  and  an  ordinary  plea  of  debt  contested  between  lord  and 
man  is,  that  in  the  latter  case  the  plaintiff  would  tender  the 
duel  with  his  demand,  and  that  the  defendant  (in  the  time 
of  Henry  the  Second)  would  have  the  choice  of  accepting  the 
tender  or  of  putting  himself  upon  the  Grand  Assise  as  to  the 
question  of  right. 

Summons  in  the  foregoing  form  appears  by  inference  from 
the  language  of  the  Dialogue  to  have  been  in  use  in  the  time 
of  Henry  the  First  ;  so  that  if  this  be  true,  writs  de  cursu 
are  older  in  the  Exchequer  than  in  the  King's  Court.  The 
author  says  that  as  new  diseases  require  new  remedies,  so 
there  was  added  to  the  summonses,  by  a  new  law,  "hoc  est, 
post  tempora  regis  Henrici  primi,"  this" subscript  :  "Si  forte 
de  alicujus  debito  summonitus  es,  qui  terram  vel  catalla  non 
habet  in  baillia  tua,  et  noveris  in  cujus  baillia  vel  comitatu 
habuerit  ;  tu  ipse  vicecomiti  illi  vel  ballivo  breve  tuum  hoc 
ipsum  significes,  deferente  illud  aliquo  a  te  misso,  qui  ei  breve 
tuum  in  comitatu,  si  potest,  vel  coram  pluribus  liberet."  ' 

The  cause  of  this  addition  to  the  writ  need  hardly  be 
suggested ;  but  the  picture  is  so  vividly  drawn,  and  the  facts 
so  far  exceed  the  suggestion  of  our  times  (unless  they  find 
a  parallel  in  the  American  excise),  that  the  digression  of  a 

'  Dialogue,  lib.  2,  c.  I  ;  Sel.  Ch.  212. 


THE    COURTS.  117 

moment,  if  it  be  digression,  may  be  suffered.  The  proceedings 
ad  Scaccarium  were  directly  noised  abroad,  and  the  conse- 
quence was  that  the  report  of  the  summonses  to  the  individual 
debtors  reached  their  cars  in  advance,  long  before  the  sum- 
mons in  fact  reached  the  county  ;  and  immediately  every  man 
set  his  house  in  order.  The  granaries  were  emptied,  and  the 
movables  scattered  hither  and  thither  or  transferred  to  safe 
places.  The  tenant  now  sat  in  his  empty  house,  awaiting  in 
security  the  coming  of  the  sheriff  and  the  other  officers.  The 
sheriffs  of  the  adjoining  counties  were  powerless :  they  could 
not  levy  upon  the  goods  of  non-resident  debtors  not  enrolled 
upon  their  lists.  And  by  such  artifice  the  authority  of  the 
royal  summons  was  for  many  years  eluded  with  impunity.' 

The  law  required  no  impossibilities  in  those  days  more 
than  in  these  ;  and  the  sheriff  was  permitted  in  proper  cases  to 
excuse  (essoin)  himself  from  personally  answering  the  sum- 
mons served  upon  him,  provided  always  he  sent  on  the  money 
collected.  This  he  sent  by  legal  men,  who  bore  also  his  letters 
of  excuse  to  the  justiciar  ;  which  they  were  to  confirm  by  oath 
corporalitcr,  if  the  justiciar  desired.  He  was  thus  saved  from  a 
fine  ;  but  these  persons  could  not  undertake  the  rendering 
his  account,  though  in  his  letters  he  had  said:  "Mitto  vobis 
hos  servientes  meos  N.  et  N.,  ut  loco  meo  sint,  et  quod  ad  me 
pertinet  faciant,  ratum  habiturus  quod  ipsi  fecerint."  No  one 
but  his  eldest  son,  except  by  special  writ  of  the  king  or  by 
authority  of  the  chief  justiciar  in  the  king's  absence,  could 
undertake  his  accounts.  2 

Among  the  lawful  excuses  of  the  sheriff,  besides  the 
sickness  of  himself,  and  of  his  eldest  son  when  deemed  nigh 
unto  death,  and  of  his  wife  when  confined,  he  could  sometimes 
excuse  himself  by  reason  of  his  duty  to  his  lord,  to  whom  by 
reason  of  tenure  he  owed  his  first  duty  after  his  allegiance  to 
his  king.     Such  a  case  arose  when  the  lord  had  summoned 

'  Dialogue,  lib.  2,  c.  I  ;  Sel.  Ch.  212, 
^  Dialogue,  lib.  2,  c.  4  j  Sel.  Ch.  21 8. 


II 8  HISTORY  OF   PROCEDURE. 

him  to  come  and  aid  him  in  a  cause  in  which  the  former  had 
been  drawn  into  court  as  to  his  whole  fee  or  the  largest  part  of 
it;  provided  the  cause  could  not  be  delayed.  Another  case  of 
excuse  arose  when  his  lord,  weighed  down  with  infirmity, 
wished  to  make  a  will  in  the  presence  of  his  men,  and  to  this 
end  had  called  the  sheriff  to  him  w^th  his  other  tenants.  And 
a  third  case  arose  upon  the  death  of  his  lord,  or  his  lord's  wife 
or  son  ;  when  it  was  his  duty  to  attend  the  obsequies. 

The  profits  of  the  county  jurisdictions,  called  the  ferm 
("firma"),  were  put  down  separately  in  what  was  called  the 
'' rotulus  exactorius  ;"i  while  the  other  subjects  of  revenue 
were  enrolled  in  annual  and  other  rolls.  The  ferm  was  a 
fixed  minimum,  which  was  often  increased  by  the  diligence  of 
the  justiciar.  The  annual  rolls  were  subject  to  variation, 
according  to  the  needs  of  the  king.  These  were  made  up  of 
the  scutage,  the  inurdnun,  the  danegeld,  essarts,  purprestures, 
escheats,  census  of  the  forests,  and  pleas  and  conventions  ; 
though  scutage  and  danegeld  were  exceptional  taxes.  Each 
county  appears  to  have  been  separately  charged  in  the  annual 
roll  with  its  proportion  of  these  several  items,  in  the  lump  at 
first ;  and  then,  upon  the  adjournment  of  the  (Michaelmas) 
term,  the  amount  fixed  upon  each  county,  with  the  subjects 
thereof,  was  taken  out  of  the  annual  roll  and  copied  down  in 
shorter  rolls  by  the  treasurer's  clerks.  After  this  was  done 
those  of  the  court  whom  the  "  majores  "  called  went  aside,  and 
considering  each  county  by  itself,  determined  in  the  case  of 
every  tax-payer  for  how  much  he  ought  to  be  summoned  ; 
having  regard  to  the  condition  (  "  qualitatem  " )  of  the  person 
and  to  the  nature  ( "  qualitatem  " )  of  the  business  and  cause 
for  which  he  was  bound  to  the  king. 

The  result  was  that  two  classes  of  writs  of  summons,  of 

which  we  have  had  some  hints  already,  were  issued  ;  one  to 

the  sheriff,  containing  the  itemised  sums  to  be  collected  from 

each  of  the  debtors  of  his  county  as  determined  in  the  manner 

'  Dialogue,  lib.  I,  c.  i8 ;  Sel.  Ch.  209. 


THE   COURTS.  119 

just  mentioned,  an  example  of  which  writ  we  have  ah-eady 
seen  ;  the  other  to  the  individual  debtors  themselves,  corre- 
sponding to  the  items  of  the  summons  to  the  sheriff.  No  ex- 
ample of  this  latter  writ  is  given,  nor  is  it  anywhere  described  ; 
but  it  issued  in  the  king's  name,  it  may  be  inferred,  and 
required  the  debtor  to  make  payment  to  the  sheriff  on  pain  of 
compulsion.  If  the  tenant  had  any  excuse  or  answer  to  make 
in  whole  or  in  part  to  the  writ,  this  was  probably  made  by  him 
at  the  coming-  term  of  the  itinerant  justiciars.  Here  would 
then  be  a  session  of  an  inferior  Exchequer,  as  has  elsewhere 
been  suggested,  corresponding  in  some  respects  to  the  central 
court  about  the  king. 

If  a  particular  debtor  failed  to  obey  the  summons  to  pay, 
and  made  no  appearance  before  the  itinerant  justiciars^  it  was 
the  duty  of  the  sheriff  to  proceed  to  make  forcible  collection  of 
the  sum  named,  if  sufficient  property  were  to  be  found.  Levy 
upon  and  sale  of  the  debtor's  property  were  to  be  made. 
This,  however,  was  to  be  done  in  a  specified  manner,  and 
it  behoved. the  sheriff  to  warn  the  sellers  to  observe  the  same. 
Movables  were  first  to  be  sold,  sparing  oxen  of  the  plough, 
that  the  cultivation  of  the  soil  might  not  be  prevented  and 
the  means  of  future  coercion  of  the  debtor  taken  away.  Still, 
if  the  movables  levied  upon  were  insufficient  to  pay  the 
demand,  then  oxen  of  the  plough  were  to  be  taken  ;  and  if 
still  there  was  a  deficit,  the  officers  were  to  go  to  the  land 
of  the  debtor's  adscriptitii,  and  proceed  to  sell  their  movables, 
observing  the  same  order  as  before ;  for  such  property  was 
known  to  belong  to  the  lord  or  debtor.  When  this  was  done 
the  law  required  the  sellers  to  desist  whether  full  satisfaction 
had  been  made  or  not ;  unless  scutage  were  demanded  of  the 
lord.  In  that  case  if  a  tenant  in  capite  had  not  paid  this 
special  tax,  the  chattels  of  his  knights  could  be  taken  as  well 
as  his  own  goods  and  those  of  his  adscriptitii.  But  the  chattels 
of  the  lord's  knights  were  not  to  be  sold  until  after  the  sale  of 
the  lord's.     And   if  the  knights  had  paid   to    the    lord    the 


120  HISTORY   OF   PROCEDURE. 

produce  of  their  fees,  and  would  give  security  to  prove  this, 
the  law  prohibited  any  sale  of  their  chattels.^ 

When  such  proceedings  failed,  it  was  the  sheriff's  duty  to 
make  diligent  inquiry  to  ascertain  if  anyone  in  his  county 
owed  the  debtor  anything,  or  had  any  property  of  the  debtor 
in  his  hands  ;  and  in  case  such  a  person  were  found,  he  was 
required  to  pay  the  amount  of  the  debt,  or  to  turn  over  the 
debtor's  property  held  by  him  to  the  sheriff,  to  the  amount 
of  the  debt,  and  the  party  was  then  discharged  as  to  his  own 
creditor  ;  the  modern  process  of  garnishment. 

A  person  of  such  rank  as  to  hold  a  barony  of  the  king 
was  treated  with  a  consideration  which  men  of  lower  rank, 
even  tenants  in  chief,  did  not  receive.  All  below  the  holders 
of  a  barony  appear  to  have  stood  upon  a  common  level  as  to 
the  requirement  of  the  personal  summonses  ;  their  duty  was 
to  make  payment  or  to  show  some  just  excuse  for  not  doing 
so.  A  person,  however,  who  held  a  barony,  upon  hearing  the 
summons,  Avas  entitled  to  pledge  his  faith,  either  in  his  own 
person  or  in  that  of  his  steward  {ivcoiiovms,  senescallus),  in  the 
hand  of  the  sheriff  that  he  would  make  settlement  in  respect 
of  the  sum  demanded  and  of  the  summons  on  the  day  of 
accounting  before  the  barons  of  the  Exchequer.  This  pledge 
of  faith  was  to  be  received  by  the  sheriff  in  open  County 
Court,  before  the  eyes  of  all,  so  that  if  the  party  giving  it 
should  wish  to  deny  the  fact,  the  (verbal)  record  ("  recordatio") 
should  suffice  against  him  ;  which  is  an  interesting  illustration 
of  a  general  limit  upon  the  right  of  proof  by  oath,  a  limit 
prevailing  in  all  the  courts  in  favour  of  an  offer  of  the  witness 
of  the  community.  If  the  sheriff  confessed  that  the  oath  had 
not  been  taken  in  this  way,  he  was  adjudged  to  have  done 
nothing ;  and  he  himself  was  then  to  make  good  the  amount 
required,  according  to  the  words  of  the  writ,  "  vel  capientur  de 
firma  tua."  2 

'  Dialogue,  lib.  2,  c.  14  ;  Sel.  Ch.  237. 

-'  Dialogue,  lib.  2,  cc.  19,  20;  Sel.  Ch.  240. 


THE    COURTS.  121 

If,  however,  after  the  sheriff  had  received  the  oath  in  due 
form,  such  party  failed  to  appear  at  the  accounting  when 
required  by  the  herald's  voice,  and  made  no  satisfaction  in 
person  or  by  procuration,  the  sheriff  was  adjudged  to  have 
done  his  duty ;  and  the  matter  was  directed  by  the  treasurer 
to  be  kept  by  itself  in  memoranda  of  the  Exchequer  for  con- 
sideration at  the  end  of  the  term.  Then,  taking  counsel 
together,  the  judges  imposed  a  severe  punishment  upon  the 
delinquent.  But  if,  after  the  sheriff's  account  was  passed,  the 
party  came  and  made  satisfaction,  then,  as  matter  of  favour  on 
the  part  of  the  judges,  he  could  be  absolved. ^ 

If  the  party  came  to  court  on  the  appointed  day  and  did 
not  deny  that  he  had  pledged  his  faith,  but  still  failed  to  make 
satisfaction,  he  was  to  be  detained,  if  a  lord  (of  lands),  at  the 
Exchequer  during  the  session,  giving  his  faith  in  the  hands  of 
the  marshal  not  to  go  beyond  the  league  of  the  place  without 
permission  of  the  barons.  If  at  the  end  of  the  term  he  had 
not  made  satisfaction,  he  was  to  be  kept  in  a  safe  place  under 
a  Hberal  custody  ("sub  libera  custodia")  until  the  king  him- 
self, if  present,  or,  if  not,  the  justiciar  with  his  associates, 
should  decide  what  should  be  done  with  a  man  who  had  thus 
pledged  his  faith  and  had  not  fulfilled  his  promise.  If  a 
knight  or  other  person,  his  steward,  who  had  given  the  pledge 
for  him,  came  and  did  not  offer  satisfaction,  he  should  be 
taken  for  the  breach  of  faith  and  given  into  the  custody  of 
the  marshal,  to  be  put  in  chains  and  sent  to  prison  after  the 
close  of  the  term.  But  a  knight  who  had  pledged  his  faith 
concerning  his  own  debt,  and  had  not  kept  his  promise,  was, 
after  the  dissolution  of  the  court,  to  be  kept  in  free  custody, 
not  in  the  prison  but  within  the  walls  of  the  prison  grounds, 
after  making  oath  corporaliter  that  he  would  not  leave  with- 
out permission  of  the  king,  or  of  the  president  of  the  court, 
i.e.  the  justiciar.  For  the  king  had  decreed  that  everyone  of 
the  dignity  of  knighthood,  if  accounted  poor  by  the  sheriff 

'  Dialogue,  lib.  2,  c.  20. 


122  HISTORY   OF   PROCEDURE. 

and  by  the  vicinage,  should  not  be  cast  into  prison  for  his 
own  debt,  but  should  be  kept  in  free  custody  as  stated.  But 
he  who,  by  command  of  his  lord,  had  pledged  his  faith,  and 
then  on  coming  to  court  had  failed  to  satisfy  the  claim,  was 
to  be  imprisoned,  whether  a  knight  or  not ;  and  the  sheriff's 
officers  were  to  be  directed  to  seize  his  goods  and  sell  them, 
bringing  the  proceeds  to  the  Exchequer.  The  party  thus  in 
default  was  also  to  be  fined,  according  to  the  extent  of  his 
property,  for  breaking  his  faith,  and  was  not  to  be  permitted 
to  pledge  his  faith  again  concerning  the  same  debt,  even  if 
his  lord  commanded. 

The  relation  of  the  Exchequer  to  the  other  courts  of  the 
king,  that  is,  to  the  central  court  which  attended  him  and  to 
the  Eyre,  may  be  inferred  from  remarks  upon  the  pleas  and 
conventions.  The  former  term  ("placita"),  as  used  in  the 
Dialogue  and  in  the  Pipe  Rolls,  meant  the  pecuniary  fines 
imposed  in  the  royal  courts  proper,  central  and  itinerant, 
and  in  such  other  jurisdictions  as  were  in  the  ferm  of  the 
sheriff,  perhaps  only  the  County  Court  (which  in  a  measure 
was  a  royal  court,  the  king  being  entitled  to  the  third 
penny  therefrom).  The  "  conventiones "  are  described  as 
spontaneous  offerings  ("oblata  spontanea");  but  in  a  peculiar 
sense.  They  were  of  two  classes,  "  oblata  in  rem "  and 
"oblata  in  spem."  The  former  were  offerings  for  having 
some  franchise,  or  fee,  or  ferm  in  the  gift  of  the  king,  or  for 
the  custody  of  some  minor  until  he  arrived  of  age,  or  for 
anything  else  obtainable,  tending  to  promote  the  party's 
welfare  or  honour.  The  offerings  might  or  might  not  relate 
to  the  administration  of  justice,  according  as  a  franchise  of 
jurisdiction  were  sought  or  not.  The  "  oblata  in  spem  "  were 
the  offerings  heretofore  mentioned,  for  having,  hastening,  or 
delaying  justice  in  the  courts.  In  so  far  as  payment  was 
not  made  directly  to  the  king  in  full  equivalent  and  dis- 
charge for  the  object  sought,  it  devolved  upon  the  sheriffs,  in 
connection  often  with  the  justiciars  itinerant,  to  make  collection 


THE   COURTS.  123 

through  the  counties  according  to  the  nature  of  each  particular 
case  and  the  agreement  as  to  payment. '  Througli  whom  the 
fines  imposed  in  the  King's  Court,  payment  of  which  was 
not  at  once  made,  were  reported  to  the  Exchequer  does  not 
clearly  appear.  Perhaps  it  was  through  the  constable's  clerk, 
who  as  we  have  seen  was  much  occupied  in  the  King's  Court 
as  well  as  in  the  Exchequer.  It  was  his  duty,  among  other 
things,  to  sit  in  the  Exchequer  with  the  counter-wa'its  con- 
cerning the  things  done  "ad  curiam." 2  Probably,  however, 
such  debtors  themselves  were  individually  summoned  to  the 
Exchequer  to  account  there. 

Some  examples  from  the  Pipe  Rolls  will  serve  to  show 
more  definitely  the  relation  of  the  Exchequer  to  the  other 
courts,  by  showing  what  particular  matters  could  be  adjusted 
only  in  that  court.  In  the  thirty-first  year  of  Henry  the  First, 
William  of  St.  E.  and  Jordan,  his  son,  were  reported  to  the 
Exchequer  as  owing  ten  marks  of  silver  for  having  right 
concerning  land  of  Roger,  uncle  of  Jordan  ;  and  if  they 
succeeded  in  recovering  they  were  to  pay  twenty  marks.^ 
Tierric,  son  of  R.  F.,  in  the  same  year,  owed  ten  marks  of 
silver  for  having  right  concerning  his  inheritance.^  Robert, 
son  of  G.,  rendered  account  as  to  a  charge  of  two  ounces  of 
gold,  to  recover  his  land  by  his  body  ;  for  which  he  paid 
thirty  shillings  "  et  quietus  est."^  Ralph  B.  rendered  account 
of  ten  marks  of  silver  that  he  might  not  plead  concerning 
his  land  in  his  lifetime  ;  of  which  sum  he  paid  into  the 
treasury  forty  shillings,  and  owed  seven  marks  of  silver,^ 
which  shows  the  value  of  the  silver  mark  to  have  been 
thirteen  shillings  and  four  pence.  Robert  G.  rendered  account 
in  respect  of  a  war-horse  that  he  might  not  plead  concerning 
land  which  Richard  of  H.  claimed  against  him.7  Matthew 
de  V.  was  reported   as  owing  one  hundred  measures  of  wine 

'  Dialogue,  lib.  2,  c.  12 ;  Sel.  Ch.  232,  233. 

-  Dialogue,  lib.  i,  c.  6  ;  Sel.  Ch.  189.  ^  Placita  Ang.-Norm.  140. 

4  Ibid.  5  lb.  141.  ''  Ibid.  ?  Ibid. 


124  HISTORY   OF   PROCEDURE. 

for  the  concord  of  a  duel  J  These  were  all  cases  of  the  thirty- 
first  year  of  Henry  the  Fn*st. 

The  following  were  cases  of  the  reign  of  Henry  the 
Second  :  In  the  second  year  of  this  king  (1156)  the  sheriff  of 
Norfolk  rendered  account  of  eight  pounds  seven  shillings  and 
four  pence  of  the  assise  of  the  county.^  The  sheriff  of 
Suffolk  rendered  account  in  the  Exchequer  of  fifteen  pounds 
and  seventeen  pence  of  the  assise  of  the  county  and  of  the 
aiixiliinn  of  Ipswich. -5  The  same  sheriff,  at  the  same  time, 
rendered  account  of  five  marks  of  silver  of  the  assise  of 
Ipswich  ;  also  one  hundred  marks  of  silver  for  a  false  judg- 
ment.4  Richard  de  Luci,  the  justiciar  and  also  sheriff  of 
Essex,  rendered  account  of  fourteen  pounds  two  shillings  of 
the  assise  held  by  the  chancellor  (Thomas  a  Becket)  and 
Henry  of  Essex.  "  In  perdonis  per  breve  regis  comiti 
Warreno  xiv.  lib.  et  ii.  s.  et  quietus").^  Henry  of  Essex, 
sheriff  of  Buckingham  and  Bedford,  rendered  account  of  one 
hundred  marks  of  the  assise  of  the  two  counties.^  In  the 
session  of  the  next  year  after  these  entries  the  sheriff  of 
Surrey  rendered  account  of  fifty-two  shillings  of  the  assise  of 
the  bishop  of  Chichester.7  A  year  later  Robert,  son  of  G., 
rendered  account  of  forty  marks  of  silver  of  the  assise  of 
Rutland.8 

Turning  now  to  the  entries  in  the  unpublished  rolls,  the 
following  may  be  noticed :  The  sheriff  of  Lincoln  a  few  years 
later  than  the  foregoing  entries  rendered  account  of  chattels 
of  fugitives  and  of  men  who  had  perished  in  (consequence  of 
failure  in)  the  water  ordeal.9  Adam,  son  of  A.,  rendered 
account  of  one  hundred  marks  to  have  record  of  the  King's 
Court  concerning  a  plea  between  himself  and  Agnes  of  R.io 
Hugh  of  K.  was  found  owing  a  mark  for  absenting  himself 
from  the  duel."  William  of  O.  owed  twelve  marks  for  default 

^  Placita  Ang.-Norm.  142.         =  Pipe  Roll,  2,  3,  &  4  Hen.  II.  p.  7. 

3  lb.  9.  •»  Ibid.  5  lb.  17.         *  lb.  23.         ^  lb.  94.         ^  lb.  145. 

5  Placita  Ang.-Norm.  268.  '°  Ibid.  "  Ibid. 


THE    COURTS.  125 

of  prosecuting  his  suit.'  Robert  of  II,  accounted  for  one 
hundred  and  six  shillings  and  eight  pence  promised  for 
putting  off  a  plea  between  him  and  Ralph  M.  to  the  term 
of  the  Exchequer  ("usque  ad  Scaccarium"  ).2  Reimund 
de  B.  owed  twenty  marks  for  the  appeal  by  W.  (who  had 
turned  king's  evidence)  of  forgery.^  Ralph  de  F.  owed  ten 
marks  for  hastening  judgment  of  Richard  the  Smith,  who 
had  appealed  him  and  his  men  of  taking  a  stag  (in  the  king's 
forest,  perhaps),  and  then  retracted  his  appeal.^  Michael 
de  S.  rendered  account  of  forty  shillings  because  he  did  not 
have  before  the  justiciar  a  man  whom  he  had  pledged.^  One  of 
the  sheriffs  rendered  account  of  eight  pounds  for  false  judgment 
of  a  duel.6  Roger  de  E.  rendered  account  of  half  a  mark  for 
refusing  to  answer  in  the  court  of  the  dean  of  Waltham 
according  to  the  king's  writ,  to  which  he  saw  no  seal. 7  Hugh 
B.  rendered  account  of  ten  marks  for  deferring  a  recognition 
"usque  ad  Scaccarium."8  Swetman  K.  was  debtor  in  half  a 
mark  for  leaving  the  King's  Court  without  permission.9  Joslin 
of  H.  rendered  account  of  twenty  shillings  for  falsely  accusing 
Osbert  L.  of  the  death  of  a  person,  and  not  having  his  war- 
ranty. 1°  Robert,  son  of  E.,  was  debtor  in  five  marks  that  a 
plea  between  himself  and  Hugh  M.  might  be  tried  before  the 
justiciar  in  the  Exchequer."  The  dean  of  Wells  rendered 
account  of  four  marks  for  casting  one  of  the  king's  servants 
into  prison. '2  William  B.  was  debtor  in  one  hundred  marks 
for  a  fine  which  he  made  with  the  king  concerning  a  "jurata" 
made  about  him  ("de  jurata  facta  super  eum^')  in  the  Inqui- 
sition of  Sheriffs  of  England  by  Walter  of  the  Isle  and 
Eustace  son  of  Stephen  i3;  the  earliest  mention  of  ^.  jurata 
by  that  name,  so  far  as  the  writer  is  aware,  that  has  been 
noticed,  being  in  the  year   1 172.14     Robert  of    L.   rendered 

'  Placita  Ang.-Norm.  268. 

=  lb.  269.  3  Ibid,  4  Ibid.  5  lb.  270.  ^  Ibid.  ^  Ibid. 

8  Ibid.  9  lb.  271.    '"  Ibid.  "  Ibid.  '=  Ibid.  '^  Ibid. 

'■1  The  Inquest  of  Sheriffs  WcOS  anno  11 70.     Sel.  Ch.  147. 


126  HISTORY   OF   PROCEDURE. 

account  of  three  marks  and  a  half  concernnig  P.  and  five 
others  for  judgment  of  iron  twice  carried  with  one  heating. ^ 

The  foregoing  cases  were  before  the  Exchequer  from  the 
twelfth  year  of  Henry  the  Second  until  the  twenty-first.    These 
examples  will  be  closed  with  a  few  special  illustrations  of  the 
complementary  relation  of  the  Exchequer  to  the  King's  Court, 
and  of  the  dependence  of  the  latter  court  upon  the  former  for 
the  final  execution  of  process  relating  to  the  king's  revenue. 
Of  the  pleas  of  William,  son  of  R.,  and  Bertram  de  V.  and 
William  B.  in  the  King's  Court,  William  G.  rendered  account 
of  ten  marks  and  a  hawk  for  imprisoning  G.of  York,2    William 
of  C.  rendered   account    for    retracting  a  plea   against   earl 
Simon  in  an  assise.^     Oger,  son  of  O.,  rendered  account  of 
half  a  mark  for  the  enrolment  of  a  chirograph  concerning  a 
final  concord  made  in  the  hall  of  the  Exchequer  (as  it  seems) 
at  Westminster  in  the  twenty-eighth  year  of  Henry  the  Second 
before  R.  of  Winton,  Geoffrey  bishop  of  Ely,  Ranulf  de  Glan- 
vill,  the  king's  justiciar,  and  Richard,  the  treasurer,^  Geoffrey 
de  Luci,  R.  son  of  Renfrid,  Michael  Belet,  Geoffrey  de  Colvill, 
R.  de  Geddingis,  Gervase  of  Cornhill,  Osbert,  son  of  Hervey, 
and  other  barons  and  justiciars  of  the  king  there  and  then 
present.^ 

But  the  Exchequer  began  even  in  the  reign  of  Henry  the 
First  to  present  another  face.  We  have  already  noticed  the 
trial  of  common  pleas  in  that  court.  The  earliest  record  of 
the  kind  now  known  is,  as  might  be  expected,  somewhat 
obscure.  It  relates  to  a  trial  that  occurred  in  the  year  1109; 
which  must  have  been  soon  after  the  advent  of  Roger  of 
Salisbury,  the  reorganiser   of  the  court.      In  that  year  the 

'  Sel.  Ch.  147. 

=  riacita  Ang.-Norm.  272,  3  lb.  274. 

^  This  Richard  was  the  author  of  the  Dialogue. 

s  That  the  cause  made  the  subject  of  the  concord  in  this  case  was  business  of 
the  King's  Court  appears  probable  from  the  fact  that  it  related  to  a  plea  of  dower 
"  de  rationabili  parti,"  and  the  added  statement  that  the  same  was  "in  curia 
domini  regis";  which  in  view  of  the  subject-matter  of  the  suit  could  not  mean 
the  (fiscal)  Exchequer. — Placita  Ang.-Norm.  276. 


THE   COURTS. 


127 


abbot  of  Abingdon  recovered  judgment  as  to  the  manor  of 
Lcwknor  in  the  liall  of  that  court ;  and  what,  besides  the 
date,  shows  that  the  trial  could  not  have  been  long  after  the 
new  administration  is  the  fact  that  in  the  record  of  the  cause, 
a  writ  by  queen  Matilda,  the  court-hall  is  spoken  of  as  the 
Thesaurum.  It  is  highly  probable  that  such  a  trial  there  was 
no  new  thing. 

The  writ  of  the  queen  is  interesting  as  possibly  indicating 
one  of  the  motives  for  trying  common  pleas  in  the  Exchequer ; 
to  wit,  because  the  Domesday  book  was  kept  there,  and  could 
there  be  used  in  evidence,  when  the  evidence  of  its  entries 
was  required  to  establish  a  title.  The  writ  is  as  follows  : 
"  Mathildis,  Angliss  regina,  Roberto  episcopo  Lincolniensi,  et 
Thoma;  de  Sancto  Johanne,  et  omnibus  baronibus,  Francis  et 
Anglis,  de  Oxenefordscira,  salutem.  Sciatis  quod  Faritius 
abbas  de  Abbendona  in  curia  domini  mei  et  mea  apud  Win- 
toniam,  in  tJiesauro,  ante  Rogerum  episcopum  Salesberiensem, 
et  Robertum  episcopum  Lincolniensem,  et  Richardum  epis- 
copum Lundoniensem,  et  Willielmum  de  Curceio,  et  Adam 
de  Porto,  et  Turstinum  capellanum,  et  Walterum  de  Gloe- 
cestria,  et  Herbertum  camerarium,  et  Willielmum  de  Oileio, 
et  Goisfredum  filium  Herberti,  et  Willielmum  de  Enesi,  et 
Radulfum  Basset,  et  Goisfredum  de  Magnavilla,  et  Gois- 
fredum Ridel,  et  Walterum  archidiaconum  de  Oxeneford  et 
per  Libruin  de  Thesauro^  disratiocinavit  quod  Leuecanora 
manerium  suum  nihil  omnino  debet  in  hundredo  de  Perituna 
facere ;  sed  omnia  quae  debet  facere,  tantummodo  habct 
ecclesia  de  Abbendona  x.  et  vii.  hidas.  Testibus  Rogero 
episcopo  Salesberiensi,  et  Willielmo  de  Curci,  et  Adam  de 
Porto  ;  apud  Wincestriainy^ 

Whether  this  was  not  merely  a  session  for  convenience  in 
the  treasury  hall  of  the  royal  court  for  the  trial  of  common 
pleas  is  not  clear.  Indeed,  it  is  impossible  at  present  to  affirm 
the  existence  of  any  distinction  so  early  as  this  in  membcr- 

'  Domesday  book  kept  at  Winchester.  ~  Placita  Ang.-Norm.  100. 


128  HISTORY   OF   PROCEDURE. 

ship  between  the  body  which  composed  the  fiscal  court  as 
such  and  that  which  composed  the  king's  tribunal  of  general 
pleas.  The  most  that  can  safely  be  said  is  that  the  king's 
judiciary  at  this  time  (as  afterwards)  were  engaged  in  two 
kinds  of  duties,  fiscal  business  and  general  litigation,  and  that 
the  writ  just  quoted  shows  that  litigation  was  sometimes 
conducted  in  the  fiscal  hall  as  well  as  in  the  king's  palace. 

The  next  mention  we  have  of  the  trial  of  an  ordinary  plea 
in  the  Exchequer  is  more  definite.  It  is  in  a  writ  of  the  same 
reign,  addressed  by  the  king  to  the  same  Richard,  bishop  of 
London.  In  this  writ  the  court  is  expressly  called  the 
"Scaccarium."  The  writ  ran  thus:  "Mando  tibi  ut  facias 
plenum  rectum  abbati  W.,  de  hominibus  qui  fregerunt  eccle- 
siam  suam  de  Wintonia  noctu  et  armis.  Et  nisi  feceris, 
barones  mei  de  Scaccario  faciant  fieri,  ne  audiam  clamorem 
inde  pro  penuria  recti."  ^ 

There  are  no  further  records  as  yet  known  of  common 
pleas  "ad  Scaccarium  "  before  the  reign  of  Henry  the  Second. 
The  regular  sessions  of  the  court  were  probably  broken  ofif 
during  the  anarchy  of  Stephen  and  Matilda,  at  least  after  the 
arrest  by  Stephen  of  the  treasurer  (the  same  Roger,  bishop  of 
Salisbury,  already  mentioned)  in  the  year  1139.  From  this 
time  until  the  second  year  of  the  reign  of  Henry  the  Second 
we  know  little  or  nothing  of  the  court  even  as  a  fisctis.  The 
Rolls  of  the  Pipe  begin  with  the  year  11 56,  saving  the  single 
roll  of  the  thirty-first  year  of  Henry  the  First  ;  the  treasurer's 
roll  being  absolutely  complete  from  that  time  and  the 
chancellor's  nearly  so. 

We  have  already  seen  indications  in  these  rolls  of  the 
trial  of  common  pleas  at  the  P2xchequer.  Many  entries  of 
the  same  nature  might  be  found  in  the  rolls  of  the  later  years 
of  Henry  the  Second. 2     Nor  arc  the  chronicles  of  the  period 

'  Placila  Ang.-Norni.  127. 

"  The  student  must,  however,  beware  of  the  word  "placitum"  or  "  placita." 
In  the  rolls  this  term  often  means 7?^^^  or  merely  business. 


TIIK    COURTS. 


129 


wanting  in  examples.  The  Chronicle  of  Abingdon  contains 
an  account  of  a  case  before  Glanvill  when  chief  justiciar  and, 
as  such,  presiding  officer  of  the  Exchequer,  anno  1185.  The 
abbot  of  Abingdon  having  deceased,  the  king,  taking  the 
abbey  into  his  own  hands,  gives  the  same  into  the  charge 
of  Thomas  of  Esseburn  ;  who  thereupon  proposes  to  take 
possession  of  the  whole  propert}',  including  that  which  per- 
tained to  the  prior  and  monks.  Complaint  is  made  before 
Glanvill  and  the  judges  "ad  Scaccarium  ;"  and  the  prior  and 
monks,  having  established  their  rights  against  the  claim  of 
Thomas,  obtain  from  the  justiciar  a  writ  in  the  nature  of  the 
modern  writ  of  injunction,  by  which  Thomas  was  notified 
that  the  property  of  the  plaintiffs  must  be  kept  separate  from 
that  pertaining  to  the  abbot,  and  commanded  not  to  lay 
hands  upon  the  former,  but  permit  the  plaintiffs  to  have  full 
right  and  power  over  both  their  tenements  and  their  tenants,  i 
This  case  is  of  special  interest  as  showing  that  the  Court 
of  Exchequer  exercised,  among  its  other  functions,  a  juris- 
diction which  in  later  times  pertained  only  to  the  Court  of 
Chancery ;  a  court  as  yet  without  existence,  as  has  already 
been  remarked. 2 

It  only  remains  to  explain  how  the  Exchequer  came  to 
be  made  use  of  in  the  trial  of  private  causes.  A  suggestion 
has  already  been  made  which  would  account  for  some  of 
the  causes  there  tried,  namely,  the  need  of  making  use  of 
Domesday  book  in  the  trial  of  questions  of  ancient  demesne  ; 
and  this  book  appears  to  have  been  kept  always  in  the 
treasury,  first  at  Winton  (Winchester),  whence  it  was  called 
"  Liber  Wintonius,"  and  afterwards  at  Westminster.  But  such 
cases  could  not  have  been  numerous,  and  further  explanation 
is  necessary.  This,  it  is  apprehended,  can  be  satisfactorily 
made. 

In  the  first  place,  convenience  may  occasionally  have 
caused  the  royal  court  of  general  litigation  to  sit  in  the  hall 

'  Placita  Ang.-Nonn.  234.  '^  Ante,  p.  19. 

K 


I30  HISTORY   OF   PROCEDURE. 

of  the  Exchequer ;  when  of  course  the  tribunal  would  still 
be  the  King's  Court  as  distinguished  from  the  Exchequer. 
But,  further,  as  to  common  pleas  before  the  fiscal  judiciary 
this  body  was  composed  of  persons  who  constituted  the 
council ;  to  which  difficult  cases  were  by  law  to  be  taken. 
And,  finally,  it  is  safe  to  say  that  the  grievance  against  king 
John  as  to  "communia  placita"was  founded  upon  no  new 
state  of  things.  The  King's  Court — the  central  court  of  the 
king — had,  it  is  true,  always  been  a  court  for  the  trial  of  pleas 
between  man  and  man ;  but  it  is  equally  true  that  its  sessions 
had  always  been  subject,  both  as  to  place  and  time,  to  the 
king's  pleasure  and  convenience,  when  he  was  in  the  kingdom. 
This  must  have  been  a  source  of  constant  annoyance  to 
litigants  who  desired  the  advantage  of  the  royal  process  in 
the  trial  of  their  causes.  The  remedy,  when  the  Eyre  was 
not  at  hand,  was  found  in  the  Exchequer,  when  it  could  be 
had.  This  court  sat  regularly,  at  Easter  and  at  Michaelmas, 
as  the  Avrit  of  summons  heretofore  quoted  shows,  i  But  the 
first  and  chief  business  of  the  court  was  fiscal ;  and  those 
who  obtained  permission  to  sue  "  ad  Scaccarium  Paschse  "  or 
"  Michaelis  "  must  wait  until  the  regular  business  and  session 
of  accounting  were  finished  before  they  could  be  heard. 
Hence  it  was,  probably,  that  the  final  concord  in  the  case  of 
Oger  above  mentioned  is  stated  to  have  been  made  "  in 
crastino  Sancti  Andreae."  But  the  sessions  of  the  Exchequer 
— the  Michaelmas  session  at  least,  at  which  term  the  accounts 
were  taken  2 — were  tedious  ;  and  it  is  not  to  be  supposed  that 
it  would  be  an  easy  matter  to  hold  the  judges  together  after 
they  had  finished  the  business  for  which  they  had  assembled. 
The  trial  of  common  pleas  there  must  consequently  have 
been  a  matter  of  special  grace,  not  readily  obtained.  How- 
ever, the  needs  of  litigants  and  the  necessities  of  the  king 

'  Ante,  p.  114.     See  also  the  Dialogue,  lib.  2,  c.  2  ;  Sel.  Ch.  212. 
-  As  to  the  preliminary  work  of  the  Easter  term,  see  Dialogue,  lib.  2,  c.  2  ; 
Sel.  Ch.  212. 


THE    COURTS.  131 

combined  to  make  cases  of  the  kind  of  increasing  frequency  ; 
and  the  result  was  to  make  the  Exchequer  like  the  King's 
Court,  to  some  limited  extent,  a  court  for  the  trial  of  common 
pleas  at  Westminster.  The  difficulty,  however,  of  inducing 
the  judges  to  remain  after  the  accounts  had  been  passed 
must  have  remained  to  the  last ;  and  the  King's  Court  con- 
tinued to  follow  the  king  in  his  varying  progresses.  The 
familiar  clause  of  Magna  Charta  concerning  the  holding  of 
common  pleas  in  some  certain  place  was  the  consequence. ^ 
Common  pleas,  however,  did  not,  it  seems,  wholly  cease  in 
the  Exchequer  until  the  very  end  of  the  thirteenth  century ; 
when  the  Articuli  super  Cartas  forbade  the  holding  of  them 
thenceforth  before  that  court.  From  the  twenty-eighth  year 
of  Edward  the  First  the  Exchecjuer  became  purely  a  fiscal 
court,  and  so  remained  until  the  invention  of  the  familiar 
fiction  of  king^s  debtor. 

TJie  County  Court. 

The  County  Courts  of  the  Anglo-Saxon  period  continued 
to  exist  throughout  the  period  of  the  Norman  supremacy,  and 
with  no  constitutional  change  before  the  last  decade  of  the 
twelfth  century.  The  charter  already  referred  to,  by  which 
William  the  Conqueror  sought  to  separate  more  fully  the 
clergy  and  laity  in  matters  of  litigation,  related,  as  we  have 
seen,  to  spiritual  causes  only.  The  bishops  and  other  clergy 
continued  to  exercise  their  right  to  sit  with  the  sheriff  and 
earl  in  the  County  Court,  as  before  the  Conquest.  The  first 
legislative  change  directly  affecting  the  ancient  court  of  the 
counties  occurred  in  the  year  1194,  when  the  sheriffs  were 
prohibited  to  sit  as  judges  therein,  and  the  holding  of  pleas  of 
the  Crown  was  committed  to  officers  to  be  chosen  (three 
knights  and  a  clerk),  the  coroners  of  the  thirteenth  century.2 

'  "Communia  placita  non  sequantur  curiam  nostram  sed  tciieantur  in  aliquo 
loco  certo." — Magna  Charta,  c.  17. 

=  Capitula  placitorum  coronse  regis,  cc.  20,  21  ;  infra,  p.  138. 

K    2 


132  HISTORY  OF   PROCEDURE. 

But  while  the  County  Courts  suffered  no  loss  of  dignity  by 
reason  of  legislation,  they  did  suffer  in  common  with  the  other 
local  jurisdictions,  by  reason  of  the  gradually  overshadowing 
influence  of  the  King's  Court,  and  the  general  desire  of  litigants 
to  resort  to  that  court  for  the  trial  of  their  causes.  The  Shire- 
mot,  however,  suffered  less  than  the  other  Folkmots. 

Throughout  all  the  changes  effected  by  the  rise  and 
establishment  of  the  jurisdiction  of  the  royal  tribunal,  the 
County  Court  still  maintained  much  of  its  ancient  authority 
and  usefulness,  as  numerous  records  show.  The  king  himself 
sometimes  made  use  of  it  for  purposes  both  judicial  and  fiscal, 
long  before  the  systematic  establishment  of  the  judicial  Eyre. 
Henry  the  First  ordered  the  continuance  of  the  sessions  of  the 
county  as  in  the  time  of  Edward  the  Confessor.  "  I  command," 
he  says  in  a  writ  to  bishop  Samson,  Urse,  the  sheriff,  and  others, 
of  Worcestershire,  "  that  from  this  time  my  counties  and  hun- 
dreds sit  in  those  places  and  at  the  same  terms  as  in  the  time 
of  king  Edward,  and  not  otherwise.  For  I  shall  have  them 
sufficiently  summoned  for  my  royal  necessities,  at  my  own 
will.  .  .  .  And  I  will  and  command  that  all  the  people  of 
the  county  go  to  the  County  and  Hundred  Courts  as  they  did 
in  the  time  of  king  Edward."  ^ 

The  county,  further,  was  not  unfrequently  assembled  during 
the  reigns  of  the  Conqueror  and  of  his  sons,  before  the  system 
of  the  Eyre,  as  occasionally  before  the  Conquest,  by  the  king's 
mandate  for  the  trial  of  causes  between  his  subjects  alone. 
The  court  before  which  the  case  at  Penenden  Heath  was  tried 
was  perhaps  more  a  Witenagemot  than  an  ordinary  County 
Court  ;2  but  the  trial  between  Wulfstan,  bishop  of  Worcester, 
and  Walter,  abbot  of  Evesham,  occurred  in  a  County  Court  at 
Worcester,  by  virtue  of  a  writ  in  which  the  king  directed  his 

'  Stubbs,  Sel.  Ch.  104  (2(1  ed.).  This  writ  seems  to  be  referred  to  in  the 
Laws  of  Hen.  I.  c.  7,  §  i,  and  is  there  stated  to  be  general  and  recent.  The 
\vrit  was  issued  between  the  years  1 1 08  and  1112  ;  from  which  the  date  of  this  part 
of  the  custumal  may  be  approximately  inferred.     Sec  also  Laws  \Vm.  I.  iii.  c.  14. 

-  Placita  Ang.-Norm.  4  ;  ante,  p.  23. 


THE    COURTS.  13^ 

justiciar,  Geoffrey  of  Coutances,  to  preside  in  his  own  (the 
king's)  place.i  Rufus  orders  William  de  Cahannis  to  assemble 
the  shire  of  Hants  for  the  determination  of  the  question 
whether  land  of  I,  had  been  subject  to  the  monks  of  St.  Benet 
in  the  time  of  the  Conqueror.^  And  Henry  the  First  com- 
mands the  sheriffs  of  Buckingham  and  of  Oxford  to  assemble 
their  counties,  and  require  the  men  to  speak  the  truth 
concerning  a  claim  between  R.  of  A.  and  the  abbot  of 
Abingdon  to  three  virgates  of  land.-^ 

In  their  ordinary  work  the  County  Courts  convened  at 
stated  times  and  places,^  at  the  summons  of  the  sheriff ;  and 
speaking  generally  they  were  attended  by  the  sheriffs  as 
presiding  officers,^  and  by  bishops,  earls,  vicars,  hundred-men, 
aldermen,  prefects,  bailiffs,  "  barons,"  vavasours,  town-reeves, 
and  other  lords  of  lands,^  but  not  by  villeins,  cottagers,  fcn/iu^l 
(freemen  of  the  lowest  grade),  or  lower  men.7  The  priest, 
reeve,  and  four  best  men  of  a  town  were  to  be  present 
("  assint ")  for  all  wdio  were  not  specially  summoned,  in  the 
necessary  absence  of  the  local  baron  and  of  his  steward. ^ 
The  passage  to  this  effect  in  the  Leges  leaves  the  nature  of 
representation  somewhat  in  doubt.  The  villeins  and  other 
classes  but  partially  free  were  not  specially  summoned,  clearly  ; 
and  these  are  probably,  in  part  at  least,  the  persons  to  be 
represented.9  Those  specially  summoned  must  come  or  suffer 
fine  :  they  could  not  excuse  themselves  by  calling  upon  the 
priest,  the  reeve,  and  the  four  men  to  represent  them.  The 
only  way  by  which  the  fully  free  could  avoid  attendance  was 
by  compounding  the  matter  with  the  king.  Between  the 
villeins,  who  seem  to  have  been  the  pre-Norman  ceorls,  and 

'  Placita  Ang.-Noim.  287.      -  lb.  71.       '  lb.  74.       •*  Laws  Hen.  I.  c.  7,  §  i. 

s  See  I  Stubbs,  Const.  Hist.  606.         ''  Hen.  I.  c.  7,  §  2.     See  also  c.  31,  §  3. 

7  lb.  c.  29,  §  I.         ®  Laws  Hen.  L  c.  7,  §  7. 

9  "Regis  judices  sunt  barones  comitatus,  qui  libcras  in  eis  terras  habent,  per 
quos  debent  causa;  singulorum  alterna  prosecucione  tractari ;  zdllani  vero,  vel 
cotseti,  vel  ferdingi,  vel  qui  sunt  viles  vel  inopes  persone,  non  sunt  inter  legum 
judices  numcrandi ;  unde  nee  in  hundreto  vel  comitatu  pecuniam  suam  vel 
dominorum  suorum  forisfaciunt,  si  justiciani  sine  judicio  dimittant." — lb.  c.  29,  §  i. 


134  HISTORY    OF    PROCEDURE. 

the  four  larger  landholders,  there  was  a  great  mass  of  "  minuti 
homines"  (mean  men),  who  now  stood  perhaps  in  the  position 
of  the  old  ceorls  ;  but  these,  judging  (if  we  may)  generally  from 
several  entries  in  the  Pipe  Rolls,  were  required  to  attend  at 
the  County  and  Hundred. ^  Hence  the  representation  could 
not  have  been  for  them.  Peculiar  local  customs,  however, 
everywhere  prevailed  ;  and  special  entries  in  the  rolls  cannot 
be  implicitly  relied  upon  as  proving  a  general,  much  less  a 
universal  rule. 

The  statement  further  in  the  passage  in  question  that  the 
reeve,  priest,  and  four  men  represented  the  lower  classes  ivJien 
the  baron  and  his  steward  were  necessarily  detained,  probably 
does  not  mean  that  the  attendance  of  such  representative 
persons  was  dependent  upon  the  absence  of  the  baron  and 
steward,  but  that  if  the  latter  were  (excusably)  absent,  then 
the  lower  classes,  such  as  were  represented  by  the  baron  or 
his  steward,  when  present,  were  to  be  represented  by  the 
delegates  attending  with  the  parish  priest."  And  if  this  be 
true,  it  follows  that  this  delegation  (being  regularly  present) 
properly  and  always  represented  others  than  those  represented 
by  the  barons. 

The  classes  who  constituted  the  court,  with  a  voice  in  the 
decision  of  questions,  the  "  judices,"  the  "judices  et  juratores," 
and  the  "minuti  judices  et  juratores,"  of  the  Pipe  Roll  of 
Henry  the   First,^  were  the  body  of  landholders  above  the 

'  See  I  Stubbs,  Const.  Hist.  396. 

-  The  "representation"  of  these  classes,  whether  by  their  lords  or  by  the 
priest,  reeve,  and  four  men,  was  apparently  protective  merely  ;  finding  practical 
expression  only  when  men  were  brought  before  the  Hundred,  or  possibly  befoi-e 
the  County,  charged  with  the  commission  of  some  offence,  for  want  of  jurisdiction 
or  for  failure  of  justice  on  the  part  of  their  lords.  See  Laws  Hen.  I.  c.  8,  §  3, 
quoted  infra,  p.  143.  Representation  could  mean  nothing  as  to  them  in  other 
matters,  since  they  were  not  (to  use  a  modern  term)  constituents. 

3  See  I  Stubbs,  Const.  Hist.  396,  397.  The  familiar  entry  in  the  Pipe  Roll  of 
31  Hen.  I.  as  to  compounding  attendance  should  not  be  overlooked.  "Judices 
et  juratores  [the  general  suitors  and  those  sworn  to  present  criminals?]  Ebora- 
ciscira;  debent  c.  lib.,  ut  non  amplius  sint  judices  nee  juratores. "^Placita  Ang.- 
Norm.  142 ;  Tipe  Roll,  p.  34.  See  Brunner,  Schwurg.  354,  355  ;  i  Stubbs, 
Const.  Hist.  396,  397.  See  also  as  to  fines  for  non-attendance  upon  the  Hundred 
and  County,  Laws  Hen.  L  c.  29,  §§  2,  3  ;  c.  53  ;  Laws  Wm.  I.  iii,  c.  14. 


THE    COURTS.  I35 

villeins  in  rank,  from  the  mean  men  to  the  sheriff  and  lords 
not  possessed  of  a  criminal  jurisdiction,  excluding  the  king's 
tenants  in  capilc,  and  from  the  parish  priest  to  the  bishop. 
These,  save  the  clergy,  were  bound  to  attend,  unless  they 
could  present  a  satisfactory  excuse  or  the  king's  writ  of 
exemption. 

In  the  time  of  Henry  the  First  the  Shiremots  met,  like 
the  Burghmots^  twice  a  year  ;i  but  by  the  end  of  the  twelfth 
or  early  in  the  thirteenth  century  monthly  sessions  were 
held.2  Causes  were  taken  to  the  County  Court  for  failure 
of  justice  in  the  Hundred  and  Manorial  Courts,  either,  as  it 
seems,  by  the  sole  act  of  the  complaining  party  or  by  writ 
of  the  king,  addressed  to  the  sheriff.  Original  jurisdiction, 
to  a  limited  extent,  appears  also  to  have  been  entertained. 
In  the  charter  of  Henry  the  First  above  referred  to,  the  king 
declares  that  causes  arising  between  the  vavasours  of  two  lords 
should  be  tried  in  the  County  Court ;  and  the  same  was  true 
in  the  time  of  Glanvill.^  The  allusions  in  Glanvill  to  the 
sheriff's  jurisdiction  generally  relate,  however,  to  the  appellate 
jurisdiction  of  the  county.  The  crime  of  theft  is  stated  with- 
out qualification  to  belong  to  the  jurisdiction  of  the  sheriff;"^ 
but  this  could  hardly  have  been  intended  in  the  broadest 
sense.  The  jurisdiction  of  such  matters  certainly  belonged  in 
the  first  instance  to  the  lords  within  whose  domains  the  theft 
was  committed  ;S  but  if  the  theft  v/ere  not  committed  within 
a  private  jurisdiction^  or  if  the  thief  succeeded  in  making  his 
escape,  and  justice  could  not  be  had  upon  him  in  the  place  in 
which  he  had  taken  refuge,  or  if  for  any  other  reason  justice 
could  not  be  had  upon  him  in  the  local  court,  the  case  was 
probably  brought  before  the  County  Court.^  Each  of  the 
other   cases   mentioned   in   that   connection   by  Glanvill   as 

'  Laws  Hen.  I.  c.  7,  §  4.  ==  i  Slubbs,  Const.  Hist.  605. 

3  Glanvill,  lib.  12,  c.  8.     But  see  Laws  Hen.  I.  c.  25,  probably  wrong.     See 
also  c.  57,  §  I,  where  the  matter  is  differently  stated. 

•»  Glanvill,  lib.  I,  c.  2.  =  Laws  Hen.  I.  cc.  25^27  ;  c.  57,  §  3  ;  c.  61,  §  9. 

^  lb.  c.  26. 


136  HISTORY   OF   PROCEDURE. 

within  the  sheriff's  jurisdiction  (scuffles,  blows,  wounds,  the 
writs  of  right  and  villenage),  is  stated  to  be  so  on  account 
(i.e.  in  case)  of  the  failure  of  justice  in  the  local  courts,' 
unless  the  question  of  villenage  be  an  exception.^  Elsewhere 
Glanvill  says  that  when  a  person  complained  that  his  lord 
exacted  customs  and  services  not  due,  or  greater  services  than 
he  ought,  or  when  the  complaint  concerned  a  villein -born,  or 
when  any  other  matter  arose  of  which  the  sheriff  had  the 
king's  writ  or  that  of  the  justiciar,  giving  him  jurisdiction 
absolutely,  or  conditional  upon  the  failure  of  another  to  do 
right ;  in  any  of  these  cases  the  sheriff  might  entertain  the 
cause.-' 

In  important  causes  the  freemen  of  several  counties  were 
often  convened.  An  example  of  the  time  of  the  Conqueror 
will  be  found  in  the  case  of  Bishop  Wulfstan  v.  Abbot 
Walter,4  in  which  there  was  a  great  assembling  of  neighbour- 
ing counties  and  barons  before  the  king's  justiciar,  the  bishop 
of  Coutances.  In  the  case  of  Bishop  Odo  v.  Walter  of 
Evesham,^  five  shires  were  present  and  participated  in  the 
cause ;  and  afterwards  the  same  cause  was  tried  over  again 
before  seven  shires.^  But  the  practice  appears  to  have  become 
less  frequent  in  the  twelfth  century. 

Thus  far,  however,  of  the  ancient  County  Court  held  by  the 
sheriff.  A  system  of  visitations  of  the  counties  by  itinerant 
justices  was  in  regular  operation,  as  we  have  seen,  at  least 
as  early  as  the  thirty-first  year  of  Henry  the  First.  The 
entire  circuit  of  the  counties  was  made  by  these  justiciars 
independently  of  the  ordinary  sessions  of  the  Shiremot. 
Discontinued  during  the  disturbance  of  Stephen's  reign,  the 
visitations  were  renewed  by  his  successor ;  and  as  early  at 
least  as  the  year  1159  there  were  "errantes  justitiae"  by 
name ;  these,  however,  being  the  sheriffs  themselves.     From 

'  Glanvill,  lib.  i,  c.  4.  -'  lb.  lib.  5,  c.  i  ;  lib.  12,  cc.  9,  11. 

■  11).  lib.  12,  c.  9.     See  also  lib.  9,  cc.  8,  10. 

•>  PlaciU  Ang.-Norm.  16,  17.  5  lb.  20.  ^  lb.  22. 


THE    COURTS.  137 

that  time  on  there  were  stated,  and  at  one  time  in  the  reign  of 
Henry  the  Second  very  frequent,  iters  ;  the  persons  making 
them  being  called  "perlustrantes  judices,"  "  barones  errantes," 
and  finally,  in  the  year  1176,  "justitiarii  itincrantes,"  a  term 
which  in  the  Anglicised  form  of  "justices  in  eyre"  has  con- 
tinued until  the  present  day.i  By  this  time  the  judicial  func- 
tions of  the  sheriff  had  come  to  be  restricted  in  ordinary  cases 
to  the  regular  session  of  the  ancient  court  of  the  county. 

The  courts  held  by  these  itinerant  justices  of  the  king 
possessed  a  dignity  altogether  above  that  of  the  ordinary 
judicial  assembly  of  the  county.  These  were  the  king's 
courts  held  in  the  counties.  The  shire  assembled  (at  the 
summons  of  the  sheriff,  as  in  other  cases)  to  meet  the  royal 
judges  with  a  more  perfect  representation  than  attended  the 
ordinary  assise  held  by  the  sheriff.  The  private  jurisdictions, 
exempted  from  the  regular  session  of  the  county,  made  part 
of  the  court  held  by  the  itinerant  justices.  The  represen- 
tation is  said  to  have  been  thoroughly  organised  ;  "  side  by 
side  with  the  reeve  and  four  men  of  the  rural  townships  ap- 
peared," says  a  distinguished  writer,  "  the  twelve  legal  men 
of  each  of  the  chartered  boroughs  Avhich  owed  no  suit  to  the 
ordinary  County  Court."  ^  The  old  Shiremot,  indeed,  with 
its  ancient  constituency,  with  the  bishop,  earl,  and  chief  men 
of  the  county  sitting  with  the  sheriff,  still  continued  to  exist ; 
but  the  great  men  of  the  provinces,  who  sat  in  it  with  exalted 
authority,  were  not  the  judges  of  the  king's  provincial  juris- 
diction, except  by  special  appointment.  "  The  constitutional 
presidents  "  of  the  county  were  for  the  most  part  set  aside  for 
men  fresh  from  the  side  of  the  king.-^ 

'  The  change  in  name,  as  Professor  Stubbs  has  suggested,  may  indicate  the 
loss  of  judicial  function  which  the  sheriff  was  gradually  sustaining.  In  1 194,  as 
we  have  said,  it  was  provided  that  sheriffs  should  no  longer  hold  pleas  in  their 
own  counties  ;  and  finally  Magna  Charta  took  away  their  right  to  hold  pleas  of 
the  Crown  altogether.  But  tliese  provisions  did  not  fully  effect  the  purpose.  See 
I  Stubbs,  Const.  Hist.  605-607. 

■■'  lb.  607. 

'  5  Freeman,  Norm.  Conq.  299.    See  anfc,  pp.  95,  96. 


138  HISTORY   OF   PROCEDURE. 

The  nature  of  the  business  transacted  in  the  counties  before 
the  itinerant  justiciars  may  be  seen  in  the  agenda  of  the  year 
1 194.  Aside  from  some  special,  temporary  provisions,  the 
capititla  may  be  taken,  probably,  as  a  fair  exemplification  of  the 
work  of  the  Eyre  for  the  last  forty  years  of  the  twelfth  century. 
The  capitida  are  prefaced  with  a  most  important  statement  as 
to  the  election  of  a  grand  jury.  The  form  of  proceeding  in  pleas 
of  (i.e.  business  concerning)  the  king's  crown,  says  the  docu- 
ment in  question,  began  thus  :  In  the  first  place  four  knights 
were  to  be  elected  from  the  whole  county,  who,  on  oath,  were 
to  elect  two  legal  knights  from  each  hundred  or  wapentake,  and 
the  latter  were  then  to  elect,  on  oath,  ten  more  knights  from 
their  several  hundreds  or  wapentakes,  or  if  knights  were  want- 
ing, legal  and  free  men  ;  so  that  the  twelve  might  together 
give  answer  in  all  capitula  of  every  hundred  or  wapentake  ;  a 
provision,  we  may  venture  to  suggest,  to  be  read  in  connection 
with  the  twelve  senior  thegns  of  yEthelred's  law,  with  the 
"juratores"  of  Henry  the  First,  with  the  twelve  legal  men  of 
the  hundred  and  the  four  legal  men  of  the  township  of  the 
Assise  of  Clarendon,  and  with  the  tivclve  knigJits  of  the  Assise 
of  Northampton  ;  the  whole  forming  an  evenly  progressive 
history  of  the  grand  jury  to  the  end  of  the  twelfth  century. 

The  capitula  placitoruni  coronce  regis  follow  :  i.  The  first 
matter  was  the  placita  of  the  Crown,  new  and  old,  and  all  (busi- 
ness) that  had  not  been  finished  at  the  last  Eyre.  2.  Then 
all  recognitions  and  all  placita  that  were  sent  before  the  jus- 
ticiars by  writ  of  the  king  or  chief  justiciar,  or  by  the  chief 
court  of  the  king.  3.  Escheats  that  had  fallen  after  the  king 
(Richard  the  First)  had  gone  to  Jerusalem  ;  what  were  then  in 
the  king's  hand,  and  whether  they  were  still  in  the  king's 
hand  ;  all  escheats  which  had  passed  out  of  his  hand,  how  and 
by  whom  and  into  whose  hands  they  had  fallen,  and  who  had 
the  issues  thereof  and  how,  and  their  value  then  and  now  ;  and 
if  there  were  any  escheat  which  belonged  to  the  king  but 
was  not  in  his  hands.     4.  Churches  in  the  gift  of  the  king. 


THE   COURTS.  139 

5.  Custody  of  boys,  so  far  as  the  same  pertained  to  the  king. 

6.  Marriage  of  girls  and  widows,  so  far  as  the  same  pertained 
to  the  king.  7.  Malefactors,  and  those  who  had  harboured  them 
or  colkidcd  with  them.     8.  Forgers.     9.  Skiyers  of  Jews,  who 
they  were  ;  pledges  given  the  slain  Jews,  their  chattels,  lands, 
debts,  and  charters   (concerning  the  debts)  ;  who  had   these 
things,  and  who  owed  the  slain,  and  how  much,  and  who  had 
the  issues.     All  the  pledges  and  debts  of  the  slain  Jews  were 
to  be  taken  into  the  king's  hand  ;  and  they  who  were  present 
at  the  killing  and  did  not  make  fine  (i.e.  compound)  with  the 
king  or  his  justiciars  were  to  be  taken  and  not  released  except 
by  command  of  the  king   or  of  his  justiciars.     10.  All  aids 
given  for  the  redemption  of  the  king  (from  captivity  in  Ger- 
many), who  had  promised  money  and  how  much,  and  how 
much  they  had  paid  and  how  much  they  still  owed.     1 1.  The 
partisans  of  earl  (afterwards  king)   John,  who  of  them  had 
compounded   with   the    king   and    who    had   not.       12.  The 
chattels  of  earl  John  and  of  his  partisans,  which  had  not  been 
turned  over  to  the  use  of  the  king,  and  how  much  the  sheriffs 
and  their  bailiffs  had  received,  and  who  had  given  anything 
contrary  to  the  ancient  customs  of  the  kingdom.     1 3.  Lands 
of  earl  John,  his  own,  those  held  in  ward  and   in  escheats, 
and  his  gifts,  and  the  reason  thereof.     These  and  all  gifts  of 
John  were  to    be  taken  into  the   king's   hand,  except  gifts 
confirmed  by  the  king.     14.  Debts  and  fines  due  John,  and 
for  what   reason  ;    and   what   were    to    be    exacted  for  the 
king's  aid.     15.  Usurers,  and  the   chattels  of  those  (usurers) 
who  were    dead.       16.  Wine   sold    contrary   to    the    assise, 
and  false  measures  of  wine  and  of  other  things.     17.  Those 
who  had  taken  the  cross,  and  had  died  before  undertaking 
their  journey  to  Jerusalem,  who  had  their  chattels,  what  they 
were,   and  how  much   they  amounted  to.      18.  The   Magna 
Assisa  in  cases  of  lands  of  the  (annual)  value  of  a  hundred 
shillings  and  less.     19.  Defaults.     20.  Besides  these  matters 
as  capitiila  for  the  inquiry  of  the  justiciars,  there  were  to  be 


I40  HISTORY   OF   PROCEDURE. 

elected  in  every  county  three  knii^hts  and  one  cleric  as  keepers 
of  placita  of  the  Crown  ;  an  office  which  grew  into  that  of 
coroner  in  the  next  century.  21,  No  sheriff  was  to  act  as 
justiciar  in  his  county,  or  in  any  county  which  he  had  held 
since  the  king's  first  coronation.  22.  All  the  cities,  town,  and 
demesne  possessions  of  the  king  were  to  be  subjected  to  talHage. 
23.  This  article  is  more  lengthy.  By  it  it  was  provided  that 
the  appointed  justiciars,  together  with  the  bailiffs  of  William 
of  the  Church  of  St.  ]\'Iary,  of  Geoffrey  FitzPeter  (afterwards, 
in  the  same  reign,  chief  justiciar),  of  William  dc  Chimelli,  of 
William  Bruere,  of  Hugh  Bardulf,  and  of  the  local  sheriffs, 
were  to  cause  the  knights  of  the  county  to  be  summoned,  to 
come  at  a  day  and  place  named,  and  before  the  justiciars  to 
cause  them  to  swear  to  do  their  utmost  towards  augmenting 
the  king's  wardships  and  escheats,  omitting  nothing  for  fear 
or  favour.  The  said  knights  noiiiinati  were,  on  oath,  to  elect 
twelve  legal  knights,  or  free  and  legal  men,  if  knights  could 
not  be  found  for  the  purpose,  through  the  parts  of  the  several 
counties  in  the  iter  of  the  said  justiciars  ;  which  knights  also 
were  to  swear  to  do  their  utmost  towards  augmenting  the 
king's  wardships  and  escheats  in  their  districts.  And  these 
latter  knights  were,  on  oath,  to  elect  out  of  the  free  men  in 
the  escheats  and  Avard-property  such  as  were  necessary  to  aid 
them  in  the  king's  business.  Then  follow  certain  regulations 
as  to  the  escheats  and  ward-property.  Most  diligent  inquiry  was 
next  to  be  made  concerning  the  assised  rent  of  the  several 
demesne  manors,  how  much  all  other  assessed  property  in  the 
manors  was  worth,  how  many  carucates  of  land  there  were,  and 
how  much  they  were  worth,  "not  estimating  them  at  the  price 
of  twenty  shillings  merely,  but  according  to  the  state  of  the 
land,  whether  it  was  good  or  bad,  and  A\'hether  it  had  increased 
or  decreased  in  value."  Similar  inquiry  was  to  be  made  con- 
cerning chattels.  24.  This  article  related  to  debts  due  the 
Jews,  the  pledges  held  by  them,  their  lands,  houses,  rents,  and 
possessions,   and   the  regulations   required   in   the  making  of 


THK    COURTS.  141 

loans  by  them  to  Christians.  25.  Finally,  it  was  directed  that 
the  inquisition  should  be  delayed,  which  was  to  have  been 
had  concernintj  exactions  and  taxes  by  all  the  king's  bailiffs, 
justiciars,  sheriffs,  constables,  foresters,  and  their  servants, 
since  the  first  coronation  of  the  king,  why  such  were  taken 
and  by  whom,  and  of  all  chattels,  gifts,  and  promises  made 
by  reason  of  the  seisin  of  lands  given  earl  John  and  his 
retainers,  who  received  them,  what  they  were,  and  of  how 
much  worth.' 

T^Jie  BurgJnnot. 

The  Burghniots,  called  also  Hustings,2  were  courts  of  the 
same  dignity  and  authority  as  the  ordinary  County  Courts, 
being  established  for,  or  having  from  early  times  been  held 
in,  those  cities  which  had  municipal  privileges  distinct  from 
and  independent  of  the  body  of  the  county.  There  is  nothing 
in  their  judicial  aspect  to  call  for  special  remark. 

TJic  Hundred  or  Wapentake  Court. 

The  Hundred  Courts,  called  Wapentake  Courts  in  the 
North  or  Danish-Norse  districts  of  England,  being  courts  of 
one  or  more  (usually  several)  townships,  continued  after 
the  Conquest  with  no  further  constitutional  change  than  w^as 
effected  by  the  Conqueror's  charter  concerning  jurisdiction  of 
spiritual  causes. 

These  courts,  like  those  of  the  county,  were  held  at  stated 
terms,  but  met  every  month.  Summons  of  attendance  pre- 
ceded the  session  by  six  or  seven^  days.  The  lords  of  lands 
not  possessed  of  a  jurisdiction  of  their  own,  exclusive  of  that 
of  the  hundred,  or  the  stewards  of  such  lords,  and  (in  some 
sort  b}'  way  of  representation)  the   parish  priest,  the  reeve, 

'  Stubbs,  Sel.  Ch.  259-263  (2cl  ed.). 

"  This  name  is  still  preserved  in  the  United  States  in  the  Court  of  Hustings  of 
Richmond,  Virginia. 

3  In  the  printed  Laws  of  lien.  I.  c.  7,  §  4,  the  lime  is  said  to  be  six  days, 
but  one  MS.  says  seven  days  ;  and  with  this  agrees  the  passage  in  c,  51,  §  2. 


142  HISTORY    OF  PROCEDURE. 

and  four  best  men  of  each  town  in  the  hundred,  attended. i 
The  attendance  of  all  full  freemen  appears  to  have  been 
required,  as  at  the  County  Court. 2 

Presided  over  by  the  bailiff  of  the  hundred,-^  causes  with- 
out the  jurisdiction  of  the  Manorial  Courts,  such  as  questions 
arising  between  the  tenants  of  different  lords,  and  all  the 
causes  of  the  tenants  of  lords  not  possessed  of  a  jurisdiction, 
and  also,  as  appears  from  the  Rotuli  Curiae  Regis,  appeals  de 
pace  regis  infracta,^  probably  in  minor  cases,  were  brought 
before  this  court. 

The  judges  in  the  Hundred  Court  were  the  body  of  suitors 
themselves,  and  these,  as  intimated,  were  the  same  persons 
who  appeared  accumulatively  in  the  County  Court.  So,  too, 
several  hundreds  were  sometimes  convened  for  the  trial  of  a 
cause,  as  in  the  case  of  the  counties  ;  one  of  the  occasions 
mentioned  for  this  being  the  want  of  judges  ("penuria 
judicum")  in  a  particular  trial. ^ 

The  Laws  of  Henry  I.  show  the  existence  also  of  another 
court  of  the  hundred,  or  rather  of  another  session  of  the 
Hundred  Court,  Avhich  was  held  by  the  sheriff  twice  a  year  for 
the  purpose  of  taking  the  view  of  frankpledge  (or  ten-manne- 
tale),  in  the  interest  of  police  regulation. ^^  This  was  the 
session  called  in  later  times  the  Sheriff's  Tourn.  All  the 
freemen  of  the  hundred,  those  who  had  fixed  dwellings  and 
those  who  had  not,  were  to  assemble  in  their  hundreds  to  see, 
among  other  things,  if  the  decennaries  were  full,  and  what 
ones,  and  how  and  for  what  reason,  were  not  full  or  w^re  over- 
full.    The  headman,  one  selected  from  the  best  men  in  all  the 

'  Laws  Hen.  I.  c.  7,  §§  4,  7  ;  c.  51,  §  2. 

^  See  e.g.  the  writ  of  Henry  II.  to  all  barons,  vavasours,  and  lords  of  lands 
within  the  wapentake  of  W.,  commanding  their  attendance  at  a  "  plea  and  M'apen- 
take  "  of  the  bishop  of  Lincoln,  and  to  do  their  duty  there,  on  pain  of  distraint  of 
their  goods. — Placita  Ang.-Norm.  139.  See  also  I  Stubbs,  Const.  Ilist.  39S  ; 
Pipe  Roll  31  lien.  I.  pp.  71,  151,  fines  imposed  upon  the  mean  men  ("minuti 
homines  ")  for  default  of  the  Hundredmot. 

3  I  Stubbs,  Const.  Hist.  398.  ^  i  Rot.  Cur.  Reg.  205,  207. 

5  Laws  Hen.  I.  c.  7,  §  5.     Comp.  c.  29.  §  4.  ^  lb.  c.  8,  §  I. 


THE    COURTS.  143 

hundred,  was  to  be  present  with  his  nine;  and  the  caldernian, 
whose  endeavour  was  said  to  be  to  promote  the  Laws  of  God 
and  men  by  watchful  observance,  was  to  be  summoned.  It 
was  the  duty  of  the  court  to  see  that  everyone  of  the  age  of 
twelve  years  and  upwards  was  in  the  decinia  or  frankpledge, 
who  cared  to  be  reckoned  worthy  of  "  were,"  "  wite,"  or  the 
rights  of  a  freeman. i 

It  is  further,  but  rather  obscurely  stated,  that  every  lord 
should  have  with  him  at  (probably)  this  session  of  the 
hundred  such  as  were  accountable  to  him  for  offences  com- 
mitted ;  to  have  them  stand  to  right,  or  to  render  account  for 
them.-  This  statement  (the  first  part  of  which  is  taken  from 
the  laws  of  iEthelred  and  the  laws  of  Cnut)^  probably  refers  to 
lords  of  lands  who  had  no  right  of  sac  and  soc.  Persons  who 
came  into  the  county  to  visit,  having  no  lands,  were  to  be 
brought  to  justice  in  public  by  those  who  were  entertaining 
them  in  case  they  committed  any  ofifence.4 

TJie  Manorial  Court. 
The  Manorial  Courts  were  generally  courts  of  the  same 
rank  as  the  Hundred  Courts,  just  as  the  Burghmots  were  of 
the  same  rank  as  the  County  Courts.  But  as  they  were  often 
created  by  royal  charter,  the  exact  extent  of  their  jurisdiction, 
as  well  as  the  nature  thereof,  can  only  be  known,  when  special, 
by  inspection  of  the  king's  grant,^  or  by  the  practice  of  the 
particular  franchise.  These  courts  were  attached  to  the 
possessions  of  lords  of  lands  and  of  monasteries,  and  in  many 
cases,  especially  in  the  case  of  religious  houses,  had  existed 
before  the  Conquest  ;  and  many  of  them  appear  to  have  been 
independent  of  the  Hundred,  and  some  of  them  even  of  the 
(ancient)  Shiremot. 

'  Laws  lien.  I.  c.  8,  §§  i,  2.  ^  lb.  §  3. 

3  /Ethelretl,  i.  c.  i  ;  Cnut,  Sec.  cc.  19,  28. 

4  Laws  Hen.  L  c.  8,  §  4,  from  /Ltlielstan,  i.  c.  8. 

5  See  I  Stubbs,  Const,  Hist.  399. 


144  HISTORY    OF   PROCEDURE. 

The  manors  had  ancicntl}',  it  seems,  been  townships  ;  and 
the  courts,  thougli  perhaps  derived  from  ancient  Townmots, 
were  the  natural  development  of  the  manorial  system  and  of 
the  existence  of  great  religious  houses,  i  There  existed  in 
every  manor  a  private  court,  in  which  was  transacted  business 
relating  to  the  interests  of  the  manor,  including  the  enforce- 
ment of  the  tenure  and  other  obligations  of  the  tenantry. 
There  was  also  generally,  not  always,  a  crim.inal  jurisdiction 
connected  with  the  court,  possessed  usually  of  a  similar  juris- 
diction to,  and  created  or  become  independent  of,  that  of  the 
Hundred  Court.-  Some  of  these  manorial  jurisdictions  were 
great  baronial  franchises,  excluding  altogether  the  ordinary 
courts  both  of  the  hundred  and  the  county,  and  apparently 
even  the  king's  justiciars,  until  the  reforms  effected  by  Henry 
the  Second. 3  The  townships  appear  to  have  had  no  courts 
possessed  of  full  judicial  functions. 4  The  parish  meetings  for 
town  administration  probably  served  all  ordinary  purposes. 

The  Forest  Court. 
The  Forest  Courts  were  royal  courts  held  by  the  foresters 
or  by  the  sheriffs  of  counties  within  which  the  king's  forests 
were  situated.  They  had  exclusive ^  jurisdiction  of  wrongs 
of  every  kind  committed  therein  in  violation  of  the  king's 
sole  right  to  the  proprietorship,  possession,  and  enjoyment  of 
the  forests. '5     All  suitors  of  the  County  Court  and  those  re- 

'  See  I  Stubbs,  Const.  Hist.  399. 

-  Laws  Hen.  I,  c.  27.  This  must  have  exempted  them  from  attending  the 
led  0^  the  hmidred.  — I  Stubbs,  Const.  Hist.  399. 

"  Assise  of  Clar.  Stubbs,  Sel.  Ch.  238  ;  ante,  p.  loi. 

4  The  "  Tunscipesmot "  of  tlie  charter  by  Richard  I.  to  Wenlock  Priory 
(l  Stubbs,  Const.  Hist.  399)  is  generally  understood  to  be  a  mere  affair  for  the 
regulation  of  the  police  and  town  matters. 

5  See  I  Stubbs,  Const.  Hist.  403  ;  Assise  of  the  Forest,  Sel.  Ch.  156  (2d  ed.). 
''  "  Placitum  quoque  forestarum  multiplici  satis  est  incommoditate  vallatum  : 

De  essartis  ;  de  cessione  ;  de  combustione ;  de  venacione  ;  de  gestacione  arcus  et 
jaculorum  in  foresta  ;  de  misera  canum  expeditacione  ;  si  quis  ad  stabilitam  non 
venit  ;  si  quis  pecuram  suam  i-cclusam  dimisit ;  de  edificiis  in  foresta  ;  de  sum- 
monicionibus  supersessis ;  de  obviacione  alicujus  in  foresta  cum  canil)us  ;  de  corio 
vel  carne  inventa." — Hen.  I.  c.  17,  But  these  general  terms  are  doubtless  to  be 
understood  of  infractions  of  the  forest  laws. 


THE    COURTS.  145 

quired  to  meet  the  justiciar's  itinerant  were  bound  to  attend. ' 
These  courts  were,  in  a  word,  a  kind  of  inferior  and  limited 
Exchequer,  estabhshed  and  managed  partly  in  the  interests 
of  the  royal  treasury,  but  having  this  distinction  from  the 
Court  of  Exchequer,  that  their  object  was  the  punishment  of 
offenders  and  the  infliction  of  fines  for  wrongs  committed 
with  respect  to  one  particular  subject,  the  forests.  The 
jurisdiction  of  the  Forest  Courts  was  mainly  ex  delicto,  the 
only  exception  perhaps  arising  from  cases  of  leases  or 
privileges  of  portions  of  the  forest  and  of  the  clearings 
(essarts)  on  payment  of  rent  or  tax  ;  while  the  jurisdiction 
of  the  Exchequer  as  a  Jiscits  was  mainly  ex  dehito,  arising 
partly  upon  the  engagement  of  the  sheriffs  with  respect  to 
the  ferm  of  the  counties,  including  the  collection  of  the  king's 
share  of  the  fines  inflicted  in  the  courts,  and  partly  upon 
special  obligations  of  individual  debtors,  discharged  directly 
at  the  court. 

The  procedure  of  the  Forest  Courts,  when  it  took  its 
legal  course,  was  probably  conformed  to  that  of  the  popular 
courts. 2  Their  jurisdiction  appears,  however,  to  have  been 
summarily  exercised.  There  is  no  indication  of  the  existence 
of  stated  terms  for  trials,  and  the  probability  is  that  the 
forester,  sheriff,  or  his  officer  was  in  little  danger  of  punish- 
ment if  he  pronounced  speedy  and  heavy  judgment  on 
behalf  of  the  king  against  an  unfortunate  trespasser  of  mean 
degree. 

The  jurisdiction  of  the  foresters  arising  ex  dehito  was  also 
exercised  in  a  summary  manner,  sometimes  even  against  the 
great.  Indeed,  there  was  strong  and  continuous  outcry  in  all 
directions  against  the  forest  administration.  Few  men  were 
more  powerful  than  the  abbot  of  Battell,  and  the  foresters 

'  I  Const.  Hist.  608;  Sel.  Ch.  156. 

-  Tlie  Case  of  The  Fifty  Men,  Placita  Ang.-Norm.  72,  accused  of  violating 
the  forest  laws  in  the  time  of  Rufus,  and  compelled,  as  in  other  cases,  to  undergo 
the  ordeal,  was  probably  tried  in  a  Forest  Court.  The  king  certainly  was  not 
present. — Eadmer,  p.  48. 

L 


146  HISTORY   OF    PROCEDURE. 

did  not  fear  to  make  harvest  of  his  rich  estates  within  their 
jurisdiction.  "  There  was  in  the  time  of  Henry  the  Second,"  says 
the  chronicler  of  Battel  Abbey,  "  a  certain  Alan  de  Neville,  chief 
forester  of  the  king,  who  took  advantage  of  the  power  given 
him  to  vex  all  the  counties  of  England,  maliciously,  with 
innumerable  and  unheard-of  claims.  Because  he  feared  not 
God  or  man,  he  spared  not  ecclesiastical  or  secular  dignities." 
And  he  proceeds  to  narrate,  "  among  other  works  of  iniquity," 
the  levying  by  Alan  upon  sums  of  money,  in  the  king's 
absence  from  the  country,  upon  exempt  clearings  of  the 
abbot,  as  essarts,  and  doing  so  against  the  will  of  the  tenants  ; 
"pro  exartis  vi  exegit."  The  abbot,  hearing  of  the  affair, 
finds  redress  only  by  sending  one  of  his  monks  to  the 
Exchequer,  whither  the  money  had  been  taken  by  the  sheriffs, 
and  there  exhibiting  his  charters  ;i  but  Alan  was  considered 
a  faithful,  if  a  somewhat  zealous,  servant,  and  the  office  of 
forester  became,  or  continued  to  be,  hereditary  in  his  family.^ 
In  making  up  an  estimate  of  the  prime  movers  in  the  legal 
reforms  of  the  reign  of  Henry  the  Second,  as  men  actuated  by 
a  sincere  love  of  justice  and  a  desire  to  promote  the  interests  of 
the  people  by  making  justice  more  certain  of  attainment,  even 
within  a  very  limited  sphere,  the  administration  of  the  forest 
laws  (and  not  merely  the  laws  themselves)  as  permitted,  if 
not  fostered,  by  the  king,  cannot  be  left  out  of  the  account. 

'  Placita  Ang.-Norm.  173. 

-  Lower,  Chronicle  of  Battel  Abbey,  I22,  note.  The  chronicler  says  that  he 
pleased  the  king  during  his  (Alan's)  lifetime,  but  that,  upon  his  death,  when  the 
brethren  of  a  certain  monastery  sought  a  portion  of  his  substance  for  their  house, 
the  king  showed  his  regard  for  his  late  forester  by  replying:  "  I  shall  have  his 
wealth,  but  you  may  have  his  carcass,  and  the  devil  may  have  his  soul." 


CHAPTER    IV. 

THE  WRIT   TROCESS. 

In  a  previous  chapter  we  have  seen  the  part  played  by  the 
writ  process  in  making  a  pathway  for  the  jurisdiction  of  the 
King's  Court.  We  have  now  to  consider  the  English  history 
of  the  writ  itself.  We  are  to  show  not  only  that  the  old  writs 
"  de  cursu,"  in  existence  when  actions  on  the  case  were  first 
authorised,  were  not  created  by  a  stroke  of  the  pen,  or  im- 
ported into  perfect  form  from  Normandy,  but  also  how, 
though  of  continental  origin,  they  were  gradually  developed 
on  English  soil^  out  of  rough  and  even  shapeless  material. 
The  result,  it  is  apprehended,  will  be  a  not  unimportant  step 
in  the  history  of  the  modern  forms  of  action.  It  will  show 
that  the  forms  of  action  not  founded  upon  the  Statute  of 
Westminster  II.  {anno  1285)  did  not  take  their  rise  in  the  writ ; 
that  it  was  originally,  indeed  entirely  foreign  to  any  purpose  of 
the  writ  to  set  forth  the  formal  language  of  an  action. i  It 
will  appear  that  its  connection  with  forms  of  action  was  a  late 
affair,  later  in  the  main  than  the  Norman  period.  Something 
will  thus  have  been  accomplished  towards  establishing  the 
proposition  that  our  oldest  common-law  forms  of  action  are 

'  For  example,  the  characteristic  words  of  the  modern  writ  of  right,  "  plenum 
rectum  teneas,"  as  will  be  seen,  were  used  in  the  Norman  period,  not  only  in  all 
real  but  even  in  personal  actions. 

L   2 


148  HISTORY   OF   PROCEDURE. 

the  direct  lineal  descendants  of  the  Germanic  formulee  of  pre- 
Norman  and  Norman  England.  The  writ  and  the  count  are 
two  converging  forces,  approaching  almost  to  contact  by  the 
time  of  Glanvill,  fully  meeting  only  in  the  next  century. 
But  the  count  is  unbroken  from  Alfred  to  Victoria. 

Before  attempting,  however,  to  trace  the  development  of 
the  writ  process,  a  classification  of  the  materials  is  necessary, 
in  order  to  fix  upon  an  intelligible  basis  of  investigation.  A 
proper  analysis  of  the  materials  will  disclose  the  fact  that  two 
entirely  distinct  classes  of  writs  reached  an  established  form 
by  the  time  of  Glanvill ;  and  that  of  the  two  other  classes, 
certain  writs  of  one  of  them  passed  over,  by  a  change  in  the 
party  addressed,  into  one  of  the  first  two  classes  above  men- 
tioned, while  the  last  of  these  classes  was  not,  in  any  just 
sense,  judicial  process  at  all. 

This  analysis,  besides  removing  the  confusion  of  a  mass  of 
writs  spread  out  in  no  other  than  chronological  order,  will 
also  show  that  an  antecedent  lineage  for  a  particular  writ  in 
Glanvill  cannot  be  made  out  by  an  arbitrary  piecing  of  writs, 
wherever  one  can  be  found  containing  any  resemblance  to 
another,!  but  that,  on  the  contrary,  each  class  must  be  kept 
by  itself,  or  its  connection  with  another  carefully  pointed  out, 
when  such  connection  exists.  The  absence  of  materials  in  a 
particular  case  will  alone  justify  transporting  one  class  of 
writs  into  the  borders  of  another,  except  in  the  instance 
above  alluded  to,  where  one  class  develops  into  another.  We 
turn  now  to  the  analysis. 

The  first  branch  of  the  writ  process,  in  point  of  importance, 
embraces  the  various  writs  of  summons.  Summons  of  the 
defendant  into  court  continued  to  be  made  by  the  plaintiff  in 
causes  before  the  popular  courts,  after  the  Conquest  as  before; 
this  part  of  the  procedure,  as  we  shall  later  see,  being  a  private, 

'  For  example,  the  writs  for  the  redress  of  trespass,  which  issued  to  the  local 
courts,  strongly  resemble  the  writ  of  right  used  in  those  courts  ;  but  they  cannot 
properly  be  used  to  establish  a  development  of  the  latter,  when  at  all  events  there 
is  suft'icient  material  in  the  writs  of  right  themselves. 


THE   WRIT   PROCESS.  149 

extra-judicial  matter.  In  the  royal  courts,  however — that  is, 
in  the  King's  Court  and,  in  the  twelfth  century,  in  the  Eyre 
and  in  the  Exchequer — a  new  system,  which  has  ever  since 
prevailed,  came  into  use,  or  rather  was  in  use  in  the  first-named 
court,  to  a  greater  or  less  extent,  from  the  time  of  the  Conquest, 
to  wit,  summons  by  the  subordinates  of  the  sheriff  or  other 
chief  officer  of  the  king.  This  was  effected  by  virtue  of  a  writ 
issued  by  the  king,  or  by  his  justiciar,  or  by  some  chief  member 
of  the  king's  household,  in  the  king's  absence,  as  by  his  wife 
or  son.  There  were  also  writs  of  summons  of  the  vicinage, 
for  the  purpose,  for  example,  of  a  general  inquisition  as  to  a 
particular  fact,  or  of  a  special  recognition,  such  as  that  of  mort 
d'ancestor  or  the  Magna  Assisa;  which  writs  were  issued  and 
serv^ed  in  the  same  manner  as  those  just  mentioned.  These 
writs,  with  rare  exceptions,  were  process  of  the  royal  courts 
only,  and  for  the  greater  part,  of  the  King's  Court;  and  all 
were  "de  cursu  "  in  the  time  of  Glanvill,  using  that  term  here 
and  elsewhere  in  the  sense  merely  of  "  fixed  "  in  respect  of 
form. 

Besides  this  ordinary  process  of  summons,  there  was  a 
special  system  of  writs  of  the  kind  in  the  Exchequer,  as  we 
have  already  seen.  These  and  other  writs  de  cursu  were  in 
use  in  the  Exchequer  as  long  as  the  ancient  system  of  ad- 
ministering the  revenue  continued  ;  but  they  have  no  bearing 
upon  the  present  inquiry.  They  had  no  connection  with 
ordinary  judicial  process,  and  they  are  only  mentioned  now 
that  their  existence  may  not  be  thought  to  have  been 
overlooked. 

Reserving  the  subject  of  the  rise  of  the  v/rit  of  summons 
of  Glanvill  for  later  consideration,  a  distinction  should  here 
be  pointed  out.  A  writ  of  summons  must,  indeed,  from  the 
first  have  contained  a  definite  statement  of  the  subject-matter 
or  cause  of  action.  The  defendant  was  entitled  to  know  the 
nature  of  the  plaintiff's  demand,  that  he  might  be  able  to 
answer  it  in  court,  or,  if  he  did  not  dispute  it,  that  he  might 


150  HISTORY   OF   PROCEDURE. 

have  an  opportunity  to  pay  it  intelligently.  And  when 
summons  was  thus  effected  by  virtue  of  a  writ,  the  act  was 
performed  (not  as  by  the  old  procedure,  by  the  plaintiff,  but) 
by  persons!  whose  knowledge  of  the  cause  of  action  must 
generally  have  been  obtained  from  the  writ. 

But  it  does  not  follow  that  the  writ  would  employ  the 
language  of  the  plaint.  The  summoners  were  not  interested 
in  that,  and  it  was  no  part  of  the  writ  in  Norman  times  to 
instruct  them  or  the  plaintiff  in  such  matters.  Whatever 
formalism  of  language,  if  any,  was  necessary  in  making  the 
summons,  the  summoners,  it  is  to  be  presumed,  were  bound 
to  be  familiar  with.  A  single  example  from  Glanvill  will 
show  that,  even  in  his  day,  the  writ  did  not  employ  the 
technical  language  of  the  count.  A  writ  of  praecipe  in  the 
King's  Court,  as  to  an  advowson,  ran  as  follows  :  "  Rex  vice- 
comiti  salutem.  Precipe  N.,  quod  juste  et  sine  dilatione 
dimittat  R.  advocationem  ecclesiae  in  villa  ilia,  quam  clamat 
ad  se  pertinere  et  unde  queritur,  quod  ipse  injuste  deforciat ; 
et  nisi  fecerit,  summone  per  bonos  summonitores  eum,  quod 
sit  ea  die  coram  nobis  vel  justiciis  nostris  ostensurus,  quare 
non  fecerit.     Et  habeas  ibi  summonitores  et  hoc  breve."  2 

The  count,  however,  was  thus  :  "  Peto  advocationem  illius 
ecclesias  sicut  jus  meum,  et  pertinentem  ad  hereditatem 
meam,  et  de  qua  advocatione  ego  fui  seisitus,  vel  aliquis  ante- 
cessorum  meorum  fuit  tempore  regis  Henrici  avi  domini  H. 
regis  vel  post  coronationem  domini  regis,  it  ideo  seisitus 
ad  eandem  ecclesiam  vacantem  presentavi  personam  aliquo 
predictorum  temporum,"  etc.^ 

The  second  branch  of  the  writ  process  is  what  for  conve- 
nience we  shall  call  manorial  and  vicontiel  writs.  Questions 
relating  to  the  title  to  lands  as  between  the  tenants  of  a 
manor  or  of  a  religious  foundation,  questions  arising  out  of 
the  tenure  of  lands,  and  questions  relating  to  the  conduct  of 

'  The  "  good  summoners  "  of  the  old  writs. 
'  Glanvill,  lib.  4,  c.  2.  3  ib.  c.  6,  §  2. 


THE   WRIT   PROCESS.  151 

tenants,  such  as  alleged  trespasses^  were,  as  we  have  seen, 
cognisable  in  the  local  courts,  when  not  drawn  into  the  King's 
Court  by  the  king's  writ.  In  case  of  a  failure  of  the  local  court 
to  do  justice  in  respect  of  a  complaint  within  its  jurisdiction, 
the  complaining  party  had  the  privilege  of  recourse  to  the  king 
for  his  writ,  commanding  the  lord  of  the  manor  or  the  head 
of  the  religious  house,  or  if  necessary,  some  other  person 
specially  delegated  for  the  purpose,  generally  the  sheriff  in 
the  County  Court,  to  do  "  full  right "  or  to  "  do  justice  "  on 
behalf  of  the  plaintiff.  These  are  the  writs  of  "justicies"  of 
later  times. 

The  king's  writ  is  here  seen  in  its  most  advantageous 
light.  There  was  no  way,  without  the  royal  mandate,  of 
compelling  the  local  courts  to  do  justice  on  behalf  of  their 
suitors  ;  and  to  require  parties  to  resort  to  the  King's  Court 
in  case  of  failure  of  justice  at  home  would  have  resulted, 
often,  in  the  total  defeat  of  a  just  demand.  It  is  perhaps 
upon  such  a  ground  that  we  are  to  understand  the  writs 
issued  to  the  sheriff  or  other  local  officer,  when  justice  could 
not  be  obtained  in  the  Manorial  Court  of  the  plaintiff's  lord. 
It  is  improbable  that  the  Shiremot  had  lost  its  ancient, 
inherent  jurisdiction  to  act  upon  a  failure  of  justice  in  the 
lower  courts  ;  and  the  king's  writs  to  the  sheriff,  it  is  appre- 
hended, are  commands  implying  a  reluctance  to  act,  rather 
than  commissions  of  authority. 

A  few  instances  of  true  writs  of  coinmissiou  to  try  causes 
occur  in  pre-Norman  times  in  England.  In  a  case,  anno 
ion,  between  bishop  Godwine  and  Leofvvine,^  the  plaintiff 
claimed  that  the  defendant  had  disseised  him  (or  rather,  his 
predecessor)  of  land  at  S.  And  the  record  proceeds  to  state 
that  the  case  was  made  known  to  the  king  (yEthelred),  who 
thereupon  sent  his  writ  and  seal  to  archbishop  Elfric,  com- 
manding him  that  he  and  his  thegns  in  East  Kent  and  in 
West  Kent  justly  decide  between  the  parties  by  plaint  and  by 

'  Thorpe,  Dipl.  301. 


152  HISTORY   OF   PROCEDURE. 

defence. I  Two  or  three  other  records  of  a  similar  import 
exist ;  but  the  practice  was  probably  exceptional  until  the 
advent  of  William  the  Conqueror,  when  it  became  common. 
The  practice  had  prevailed  extensively  on  the  Continent ; 
but  it  is  not  necessary  to  suppose  that  the  idea  had  been 
borrowed  in  the  Anglo-Saxon  period.  It  was  in  the  natural 
course  of  things.  The  king's  duty  to  his  subjects  required 
him  to  see  that  justice  was  dispensed ;  and  as  his  own  court 
did  not  undertake  small  causes,  and  as  it  would  be  unjust  in 
many  cases  to  require  suitors,  with  their  witnesses,  to  go 
there,  his  only  course  was  to  commission  special  judges  to  do 
what  the  local  court  had  failed  to  do. 

It  was  not  an  uncommon  thing  for  the  king  or  justiciar  to 
address  his  mandate  directly  to  a  recusant  defendant,  requir- 
ing him  to  do  what  the  plaintiff  prayed,  or  rather,  what  the 
king  was  pleased  to  order.  Of  a  similar  nature  were  writs 
issued  to  the  king's  judges,  or  to  his  officers  and  bailiffs 
generally  or  in  particular,  commanding  them  to  do,  or  more 
commonly  to  refrain  from  doing,  and  to  prohibit  others  from 
doing,  certain  specified  things,  or  to  respect  certain  specified 
rights.  Such  writs  are  the  third  branch  of  the  writ  process. 
Writs  of  this  class  never  became  de  cursu  as  a  whole,  but 
some  of  those  addressed  to  defendants  passed  over  into  de 
cursu  writs  of  the  second  class,  to  which  the  whole  of  this 
third  class  bore  some  likeness.  Such  will  be  considered  in 
treating  of  the  manorial  writs  ;  and  a  further  reference  will  be 
made  to  them  towards  the  close  of  the  present  chapter. 

The  connection  of  the  writs  addressed  to  a  defendant  with 
the  manorial  writs — the  connection  by  which  they  pass  over 
into  the  de  cursu  writs  of  the  second  class — is  found  in  a 
"  nisi  feceris  "  clause,  which  all  the  writs  having  such  a  con- 
nection  possess.     The   defendant   was   commanded,  e.g.,    to 

'  It  is  not  without  interest  to  notice  that  the  record  of  this  case  shows  that  the 
use  of  the  writ  was  attended  with  no  change  in  the  mode  of  trial  common  to  suclr 
cases.     The  v.rit  was  simply  a  special  grant  of  jurisdiction. 


THE   WRIT    PROCESS.  i53 

perform  services  due  by  him  to  the  phiintiff,  "et  nisi  feceris," 
said  the  writ,  the  sheriff  or  some  other  person  named  would 
compel  him.  Then,  if  the  defendant  disobeyed  the  writ, 
another  writ  of  the  second  class,  de  cursu  in  Glanvill's  time, 
was  granted  when  needed,  in  accordance  with  the  warning  of 
the  clause  referred  to.  It  will  further  be  seen,  when  the 
investigation  of  these  writs  is  reached,,  that  they  ran  in  the 
same  general  form  at  last,  as  might  be  expected,  with  the 
manorial  and  vicontiel  writs.  The  only  essential  difference 
between  the  two,  as  has  been  intimated,  is  that  one  commands 
a  party  defendant  to  do  something,  and  the  other  commands 
someone  else  to  compel  him  to  do  it. 

There  was  still  another  branch  of  the  writ  process.  Some- 
times a  person  was  able  to  obtain  from  the  king  at  the  outset 
a  writ  in  the  nature  of  final  process,  like  a  modern  writ  of 
execution,  without  a  trial  before  the  courts.  Of  this  nature 
may  possibly  be  the  writ  in  Abbot  Scotland  v.  Ham 0,1  by 
\vhich  William  the  Conqueror  commanded  Lanfranc,  Geoffrey 
of  Coutances,  and  others,  to  cause  the  plaintiff  to  have  seisin 
of  the  town  of  Fordwick,  of  which  he  had  been  disseised. 
There  is  no  mention  of  trial  had  or  to  be  had  concerning  the 
plaintiff's  claim  ;  though  this  fact  is  not  conclusive  that  the 
writ  was  not  part  of  an  ordinary  judicial  proceeding.^ 

It  is  unusual,  however,  for  a  true  writ  of  final  process  to 
omit  all  mention  of  the  trial  and  judgment — or,  rather,  there 
are  many  writs  of  execution  which  do  refer  to  judgment 
obtained — and  it  is  hardly  probable  that  all  the  writs  of  this 
kind  which  make  no  mention  of  a  trial  were  issued  upon 
judgment  rendered  in  the  courts.  The  writ  in  favour  of  the 
monastery  at  Abingdon  against  claimants  under  Modbert  (i*)-^ 
can  hardly  be  mistaken.  Henry  the  First  therein  directs 
Hugh  of  Bocland  to  go  to  Abingdon  and  give  reseisin  to  the 

'  Placita  Ang.-Norm.  13. 

"  This,  like  the  writ  in  the  case  of  Modbert  v.   Prior  and   Monks  of  Dath, 
Placita  Ang.-Norm.  114,  is  perhaps  an  instance  of  a  conditional  mandate, 
'  Placita  Ang.-Norm.  1 11. 


154  HISTORY  OF  PROCEDURE. 

monastery  of  all  the  lands  which  Modbert  had  given  away  or 
mortgaged,  or  had  bought  from  anyone  and  given  to  another  ; 
language  which  fairly  excludes  the  idea  of  a  trial. 

If,  however,,  there  be  doubt  as  to  the  foregoing  cases,  the 
case  of  the  Church  of  Abingdon  v.  William  i  is  clear.  The 
record  of  the  case  declares  that  after  the  death  of  abbot 
Faritius,  William  complained  to  the  king  (Henry  the  First) 
concerning  a  mill  of  which  he  said  he  had  been  disseised  by 
Faritius;  "wherefore  by  the  king's  command  he  was  put  in 
seisin  thereof."  But  afterwards,  so  the  record  proceeds,  "  by 
intercession  of  the  monks  through  Walter,  chaplain  of  William 
of  Bocland,  the  king,  having  learned  the  truth,  commanded 
that  the  church  have  seisin  again.^^ 

There  is  very  clear  evidence  of  the  same  nature  in  a 
case  of  the  abbot  of  Crowland.^  The  abbot  had  been  dis- 
seised of  certain  lands  by  execution  upon  judgment  of  court 
obtained  by  the  prior  of  Spalding.  Conceiving  his  monastery 
to  have  been  made  the  subject  of  an  unjust  judgment,  the 
abbot  proceeds  to  the  court  of  the  emperor  of  Germany, 
where  the  king  (Richard  the  First)  was  then  held  in  captivity, 
and  having  persuaded  the  latter  (with  a  consideration,  no 
doubt)  of  the  justness  of  his  cause,  obtains  from  him  a  writ 
addressed  to  the  archbishop  of  Canterbury,  the  king's  jus- 
ticiar, in  which  the  latter  is  commanded  without  delay  to 
restore  the  abbot  to  seisin  of  the  lands  in  question.  And 
upon  the  abbot's  return  to  England  he  presents  the  writ  to 
the  archbishop,  who  thereupon  sends  it  to  the  sheriff  of 
Lincoln,  with  an  order  to  execute  it.  And  "  the  undersheriff, 
Eustace,  therefore,  on  behalf  of  the  king  and  his  justiciar, 
caused  solemn  reseisin  of  their  marsh  to  be  made  to  the 
abbot  and  house  of  Crowland  at  the  beginning  of  Lent."  ^ 

'  Placila  Aug. -Norm.  130. 

-  Though  this  case  is  in  the  false  Ingulfs  Chronicle  of  Crowland,  there  is  no 
ground  known  to  the  writer  for  doubting  the  genuineness  of  this  particular  record. 

3  See  also  l  Rot.  Lit.  Claus.  99,  anno  1207  :  "  Terra  ilia  fuit  in  nianu  comitis 
Leicestric  Simonis  quern  de  terris  suis  prccepimus  [king  John]  disse'siri."  As  to 
the  sale  of  justice,  SQQpost,  pp.  186-190. 


THE   WRIT   PROCESS.  155 

Sometimes,  however,  writs  of  this  kind,  when  addressed 
to  persons  possessed  of  a  judicial  franchise,  were  treated  as 
not  peremptory,  and  the  disputed  claim  put  in  trial ;  as  in 
the  case  of  Modbert  v.  Prior  and  Monks  of  Bath.i  In  that 
case  the  king's  son  sent  a  writ  to  the  bishop  of  Bath,  then 
holding-  his  court,  in  these  words  :  "  Pra^cipio  ut  saisias  Mod- 
bertum  juste  de  terra  quam  tenuit  G.  de  S.,  sicut  heereditavit 
eum  in  vita  sua."  The  bishop  said,  "  Si  tamen  justum  est, 
acquiesco,"  and  then  laid  the  case  before  his  court.  And  the 
king  confirmed  the  judgment  rendered,  though  the  result  was 
against  Modbert.^ 

The  practice  of  granting  writs  of  execution  without  trial 
in  the  courts  appears  to  have  been  common,  so  as  to  have 
become  one  of  the  chief  grievances  of  the  baronage  and 
commonalty  against  king  John  ;  resulting,  with  other  like 
influences,  in  the  famous  article  of  Magna  Charta  by  which 
it  was  provided  that  the  king  should  not  disseise  or  imprison 
his  free  subjects  unless  by  the  legal  judgment  of  their  peers 
or  the  law  of  the  land.^  This  ancient  prerogative  of  the 
king,  however,  was  extinguished  only  after  a  long  and  deter- 
mined struggle,  of  which  Magna  Charta  was  but  the  begin- 
ning. It  was  not  until  the  reign  of  Edward  the  P^irst  that  the 
constitutional  change  was  finally  settled.     The  root  of  this 

'  Placita  Aug. -Norm.  114. 

=  This  may  be  an  instance  of  a  practice  that  afterwards  prevailed  in  Normandy 
under  the  writ  of  prrecipe,  which  was  treated  as  a  conditional  mandate.  See 
Brunner,  Schwurg.  330-332. 

3  "  Nullus  liber  homo  capiatur,  vel  imprisonetur,  aut  dissaisiatm-  ....  nisi  per 
legale  judicium  parium  suorum  vel  per  legem  terrre." — Art.  39.  As  to  the  expres- 
sion "per  legem  terree,"  which  has  caused  so  much  discussion  in  the  law  books, 
and  generally  been  interpreted  by  the  courts  to  mean  that  defendants  in  criminal 
cases  must  be  tried  by  jury  upon  presentment  or  indictment,  it  may  be  observed 
that  jury  trial  in  criminal  cases  had  not  come  into  use  at  this  time  except  as 
matter  of  special  grace  on  the  part  of  the  king.  It  was  not  until  after  the  aboli- 
tion of  the  ordeal  [an.  1215-16)  that  trial  by  jury  began  to  come  into  use  in  criminal 
cases  ;  and  even  then  it  could  only  be  resorted  to  by  consent  of  the  prisoner. 
Hence  the  origin  of  peine  forte  et  dure  to  compel  him  to  consent.  The  expression 
"per  legem  terrre  "  simply  required  judicial  proceedmgs,  according  to  the  nature 
of  the  case  ;  the  duel,  ordeal,  or  compurgation  in  criminal  cases,  the  duel,  witnesses, 
charters,  or  recognition  in  property  cases. 


136  HISTORY   OF   PROCEDURE. 

enormous  evil  probably  lay  in  the  old  and  common  but  repre- 
hensible practice  of  the  kings  in  taking  money  for  hastening, 
having,  or  delaying  justice.'  We  shall  have  nothing  further  to 
say  of  writs  of  this  class.     They  could  not  become  de  cursu. 

Turning  now  to  the  history  of  the  wa'its  which  became 
de  cursu,  and  beginning  with  the  second  class,  the  manorial 
writs  of  right,  it  should  be  observed  at  the  outset  that 
prior  to  the  reign  of  Henry  the  First  (1100-35),  ^s  far  as 
existing  materials  indicate,  the  writs  generally  fail  to  give 
us  any  clear  light  as  to  the  nature  of  the  action  involved  in  a 
particular  case,  except  when  there  is  a  direction  for  an  inqui- 
sition. Even  the  subject-matter  of  the  suit,  not  to  speak 
of  the  cause  of  action,  was  often  very  vaguely  stated.  Tech- 
nical language,  having  any  significance  in  respect  of  the  mode 
of  trial,  was  entirely,  or  almost  entirely,  wanting.  And  even 
where  some  term  occurs  in  a  particular  writ  suggestive  of  the 
technical  language  of  later  process,  it  would  be  unsafe  to  infer 
that  the  writ  points  to  the  mode  of  trial  required  by  the 
subsequent  writ  to  which  a  resemblance  is  seen.  In  one 
of  the  earliest  English  writs,  William  the  Conqueror  orders 
Geoffrey,  bishop  of  Coutances,  to  be  present  at  a  plea  between 
Wulfstan,  bishop  of  Worcester,  and  Walter,  abbot  of  Evesham, 
"  et,  ut  plene  episcopus  Wulstanus  suam  rcctitudinem  habeat, 
stude."2  This  may  suggest  the  "plenum  rectum  teneas"  of 
the  writ  of  right ;  but  the  process  which  actually  followed  was 

'  The  Pipe  Rolls  are  full  of  such  cases.  See  instances  in  Placita  Ang. -Norm. 
140,  141,  269  (R.  de  F.  debet  x.  marcas,  pro  festinando  judicio  suo  de  R.  F.), 
273  ;  Madox,  Ilist.  Exch.  ch.  12,  p.  293  (fol.  ed.).  The  result  is  hinted  at  in  the 
Dialogue  of  the  Exchequer,  lib.  2,  c.  23  (Stubbs,  Sel.  Ch.  242,  sub  fin.  2d  ed.), 
where  it  is  said  :  "  In  spem  vero  dicuntur  offerri,  cum  ([uis  exhibenda;  sibi  justitiic 
causa,  super  fundo  vel  redditu  aliquo  regi  summam  aliquam  offert ;  non  tamen  ut 
fiat,  ne  in  nos  excandescas,  et  venalcm  penes  eum  [sc.  regem]  justitiam  dicas,  imnio 
lit  sine  dilationc  fiat"  That  which  follows  this  quotation  should  be  specially 
noticed,  as  showing  that  the  king  was  accustomed  to  act  judicially  of  his  own  right. 
Delay  of  the  courts  was  equally  purchasable. — Madox,  309.  The  Dialogiie  was 
written  anno  11 77,  nine  or  ten  years  before  Glanvill's  treatise.  Glanvill  puts  the 
king's  charter  on  the  level  with  a  judgment. — Lib.  13,  c.  li,  §  6. 

-  Placita  Ang. -Norm.  287. 


THE   WRIT   PROCESS.  157 

that  of  party-witness,  and  not  the  duel'  With  the  reign  of 
Henry  the  First,  however,  a  change  appears,  and  language 
characteristic  of  the  later  writ  of  right  is  found  in  writs  which 
would  naturally  be  followed  by  the  duel.  It  should  be  ob- 
served, however,  that  the  duel  did  not  become  an  established, 
prescribed  mode  of  trial  in  real  property  causes  in  England 
before  the  twelfth  century.  It  was  a  new  and  disturbing 
force  with  the  Conquest,  and  was  continually  jostling  and 
jostled  among  other  modes  of  trial  until  the  reign  of  Henr}- 
the  First,  if  not  later.  This  fact  would  make  it  difficult  at 
best  to  trace  the  English  writ  back  of  the  reign  of  Beauclerc 
into  the  period  of  shapelessness. 

The  writ  of  right,  as  it  appears  in  Glanvill,  was  granted  for 
the  trial  in  a  manorial  or  other  local  court 2  either  (i)  of  a 
right  of  property  in  lands,  such  as  a  claim  of  frank  tenement 
or  dower,  or  (2)  of  a  right  to  things  connected  therewith  of  an 
incorporeal  nature,  such  as  services  due  by  reason  of  tenure  ; 
differing  in  form  accordingly.  In  either  case  it  was  directed 
to  the  lord  of  the  manor,  or  other  proprietor,  of  whom  the  land 
was  held ;  or  in  case  of  his  inability  or  want  of  disposition  to 
do  justice,  to  the  sheriff  in  the  County  Court,  or  to  some 
special  delegate.  The  characteristic  language  of  Glanvill's 
writ  for  the  recovery  of  lands  (the  growth  of  which  writ  will 
be  first  considered)  appears  in  the  words  with  which  it  begins: 
"  Prsecipio  tibi  quod  sine  dilatione  plcimin  rectinn  tciicas  N. 
de  decem  carucatis  terrae,"  etc.  The  italicised  words  ga\'e 
the  writ,  even  in  Glanvill's  time,  the  technical  nam^  of  "^writ 
of  right  "  ("  breve  de  recto  "),  because  they  called  in  terms  for  a 
trial  of  the  "  full  right  "  (that  is,  the  right  of  property)  to  the  land 
in  question.  It  is  fair  to  presume  that  earlier  writs  of  the  twelfth 
century,  containing  the  same  command,  employed  the  words  in 
the  same  sense,  and  thus  looked  to  a  trial  of  the  right  of  propert}'. 

'  Placita  Ang.-Norm.  17,  iS. 

=  There  was  another  and  different  writ  of  right  in  the  King's  Courts,  described 
by  Glanvill  in  his  first  book,  the  precipe  quod  reddat.     See  ante,  p.  77. 


158  HISTORY  OF   PROCEDURE. 

The  first  writ  to  be  noticed  is  granted  by  Henry  the  First, 
perhaps  in  the  year  iioS,  in  favour  of  the  abbot  of  Abingdon, 
and  addressed  to  J.  de  S.  as  defendant.  It  is  therefore  an 
example  of  the  third  class  of  writs.  The  writ  runs  thus  : 
"  Praecipio  tibi  ut  plenum  rectum  facias  i  Faritioabbati  et 
ecclesiffi  de  Abbendonia  de  terra  quam  abstulisti  eis,  quam 
R.  de  C.  dedit  ecclesire  in  eleemosyna;  et  nisi  sine  mora  feceris, 
prnccipio  quod  W.  G.  faciat,  et  si  ipse  non  fecerit,  H.  de  B. 
faciat,  nc  inde  clamorem  audiam  pro  recti  penuria."^ 

The  defendant  fails  to  obey  the  writ,  and  another  is  issued 
to  W.  G.,  according  to  the  intimation  of  the  first  writ.  The 
language  of  the  second  precept  is  substantially  the  same  as 
that  of  the  principal  writ  ;  but  it  should  be  given  for  com- 
parison with  the  writs  which  are  to  follow.  The  king  says  : 
"  Prsecipio  ut  teneatis  plenum  rectum  Faritio  abbati  de  Abben- 
donia de  terra  quam  R.  C.  posuit  ad  Abbendonam  vestra 
concessione,  et  unde  ecclesia  fuit  saisita ;  et  ita  facite,  ne  inde 
clamorem  audiam  pro  recti  penuria."^ 

The  next  writ  of  this  kind  is  granted  by  Stephen  in  the 
year  1141.  It  is  addressed  to  the  archdeacon  of  Canterbury, 
and  proceeds  thus  :  "  Praecipio  tibi  quod  sine  dilatione  et 
escampa^  teneas  plenum  rectum  abbati  Sancti  Augustini  et 
monachis  dc  ecclesia,  de  Ncwyntone  ;  ne  super  hoc  inde 
clamorem  audiam."  ^ 

The  last  writ  prior  to  GlanviU  is  executed  by  Robert,  earl 
of  Leicester,  the  king's  justiciar,  anno  1162,  to  R.  of  W.,  and 
is  as  follows  :  "  Praecipio  quod  sine  dilatione  plenum  rectum 
teneas  Roberto  de  M.  de  terra  quae  fuit  VVillelmi  de  M.,  fratris 
ejus,  de  D.  cum  pertinentiis  suis,  quam  clamat  tenere  de  te. 
Et  nisi  feceris,  R,  dc  V.  faciat.    Et  nisi  fecerit,  ego  faciam  fieri."<J 

'  The  diflerencc  between  "plenum  rectum  _/Jz«aj "  and  "plenum  rectum 
teneas  "  should  be  noticed.  The  latter  is  an  order  to  entertain  a  suit ;  the  former, 
merely  to  do  right.     But  the  terms  are  not  always  used  with  discrimination. 

-  Placita  Ang.-Norm.  99.  The  "ne  inde  clamorem"  clause  became  one  of 
the  most  familiar  clauses  of  the  writs. 

3  Ibid.  ■*  Evasion.  s  Placita  Ang.-Norm.  146.  "  lb.  210. 


THE   WRIT    PROCESS.  159 

All  of  the  foregoing  writs  bear  a  sufficient  resemblance  to 
each  other  to  be  classed  together,  and  to  be  called  from 
the  characteristic  words  in  each  of  them,  "  writs  de  recto." 
Glanvill's  writ  of  right  in  full  is  as  follows  :  "  Rex  comiti  W. 
salutem.  Pr^cipio  tibi  quod  sine  dilatione  teneas  plenum  rec- 
tum N.  de  decem  carucatis  terrse  in  M.,  quas  clamat  tenere  dc 
te  per  liberum  servitium  [various  alternative  tenures  are  here 
inserted],  quas  R.  filius  W.  ei  deforciat.  Et  nisi  feceris,  vice- 
comes  de  N.  faciat,  ne  amplius  clamorem  audiam  pro  defectu 
justitiae."! 

The  resemblance  between  this  and  the  preceding  writs  is 
so  striking  as  not  to  require  more  than  a  cursory  reading. 
The  variations,  however,  show  that  there  was  no  prescribed 
form  of  writ  before  the  time  of  Glanvill ;  and  Glanvill's  writ 
shows  that  the  form  finally  established  was  an  easy  adaptation 
of  the  language  of  the  older  writs. 

The  foregoing  writ  of  right  had  an  offshoot  in  a  writ  for 
the  redress  of  trespasses.  Such  wrongs  were  commonly  re- 
dressed in  the  local  court  of  the  district  where  they  were 
committed ;  and  in  such  cases  no  writ  was  used.  When, 
however,  the  lord  of  a  locus  failed  to  do  justice  by  the  injured 
party,  resort  was  had  to  the  sheriff  in  the  County  Court,  or 
to  some  specially  delegated  person.  In  the  latter  case  the 
plaintiff  obtained  a  writ  from  the  king  commanding  the  person 
delegated  (as  in  the  manorial  writ  of  right)  to  "  do  full  right " 
to  the  plaintiff.2  A  single  example  will  serve  to  show  the 
near  relation  of  this  writ  for  the  redress  of  trespass  to  the  writ 
of  right  mentioned.  The  following  is  perhaps  of  the  year  i  loS  : 
"  H.  rex  Anglice,  Rogero  episcopo  Salisb.  salutem.  Mando 
tibi  quod  plciimn  rcctinn  teneas  abbati  de  A.  de  hominibus 
meis  de  F.  de  foeno  suo,  quod  vi  ceperunt  de  prato  suo."-^ 

'  Glanvill,  lib.  12,  c.  3. 

=  See  Placita  Ang.-Norm.  89  (both  cases),  98  (second  case),  127,  166. 

3  lb.  98.  Roger,  bishop  of  Salisbury,  was  at  this  time  justiciar  as  well  as 
treasurer,  and  his  hand  may  probably  be  seen  in  the  development  and  regulation 
of  process  in  the  King's  Court  as  well  as  in  the  reorganisation  of  the  Exchequer. 


i6o  HISTORY    OF   PROCEDURE. 

Sometimes  in  these  writs,  for  "  plenum  rectum,"  we  have 
"  plenariam  rectitudinem,"'  or  "  plenam  justitiam  ;  "  2  but  the 
variations  are  as  slight  as  in  the  contemporaneous  writs  of 
right  already  considered.  As  trespasses,  however,  came  to  be 
redressed  more  and  more  in  the  king's  courts,  these  manorial 
writs  appear  to  have  undergone  much  change  in  form  after 
the  Norman  period,  assuming  at  length  the  language  of  the 
count.3 

We  have  already  seen  that  by  an  allegation  of  breach  of 
the  king's  peace,  trespasses,  which  primarily  belonged  to  the 
local  courts,  were  redressiblc  in  the  King's  Court  in  the  time 
of  Henry  the  Second,  if  not  earlier.4  But  no  very  general 
advantage  appears  to  have  been  taken  of  this  privilege  before 
the  thirteenth  century.  At  all  events  there  is  no  indication  in 
the  twelfth  century  of  the  existence  of  the  familiar  writ  of 
trespass  of  later  times,  in  any  settled  form.  Some  approach 
to  the  modern  form  may,  however,  be  seen  in  appeals  and 
writs  of  the  last  quarter  of  the  twelfth  century.^ 

The  writ  of  right  for  the  enforcement  of  services  due  by 
reason  of  tenure  and  the  writ  of  right  for  money-debt  are 
closely  related.  They  grew  out  of  common,  or  rather  out  of 
general  nebulous  materials,  and  were  undistinguishable  until 
about  the  time  of  Henry  the  Second,  as  will  appear  from  an 
examination  of  the  w^-its  themselves.  The  modern  action  of 
debt  is  lineally  descended  from  the  second  of  these  writs,  and 
is  therefore  in  its  origin,  what  that  always  was,  a  real  action. 

The  earliest  of  these  writs  extant  in  England  is  of  the  year 
1 106,  and  is  directed  by  the  king  to  Gotselin  de  Riparia.  It 
is  in  this  language  :  "  Praicipio  ut  faciatis  Faritio  abbati  de 
Abbendona  tale  servitium  clc  fcudo  quod  de  eo  et  de  abbatia 
sua  tenes,  quale  fratrcs  tui  fccerunt  antecessori  suo  A. 6    Quod 

'  See  Placita  Ang.-Norm.  89.  "  Ibid.         3  Fitzherbert,  Nat.  Brev.  194. 

*  Ante,  pp.  84,  85  ;  Glanvill,  lib.  i,  c.  2.     For  an  example,  see  Placita  Ang.- 
Norm.  285,  anno  1195. 

5  See  Placita  Ang.-Norm.  239,  283,  285 
''  Athelelm,  predecessor  of  Faritius. 


THE   WRIT   TROCESS.  i6i 

nisi  feccritis,  ipse  abbas  indc  te  constringat  per  fcudum 
tuum."i 

The  writ,  it  will  be  observed,  is  addressed  to  the  defendant, 
being  a  warning  to  perform  engagements  of  tenure  on  pain 
of  distraint  ;  the  usual  consequence  in  some  form  of  disobe- 
dience in  such  cases.  It  belongs  to  the  third  class  of  writs, 
as  do  most  of  those  which  follow. 

The  next  writ  in  favour  of  the  same  party,  directed  by  the 
king  to  another  tenant,  is  to  the  same  effect,  though  some- 
what differently  expressed.  It  is  as  follows:  "  Pi'aecipio  tibi 
ut  abbati  Faritio  facias  servitium  terras  quam  tenes,  sicut  tui 
antecessores  fecerunt  tempore  Adclelmi  abbatis.  Et  nisi  feceris, 
tunc  prascipio  ut  abbas  peedictus  de  terra  sua  quam  tenes 
suam  voluntatem  faciat."^ 

The  following  writ  was  granted  about  the  year  mo  by 
Roger,  bishop  of  Salisbury,  the  king's  treasurer  and  justiciar, 
against  two  tenants  of  the  church  of  Abingdon,  jointly  sued 
for  money-debt  due  by  express  contract  of  tenure.  The  writ 
is  substantially  the  same  as  the  foregoing,  and  serves  to 
confirm  the  statement  above  made  that  the  writ  of  debt  was 
originally  undistinguishable  from  the  writ  concerning  services 
by  reason  of  tenure.  The  precept  runs  thus  :  "Praecipio  vobis 
quod  reddatis  ecclesire  de  Abbendona  rectitudines,  quas  illi 
debetis  de  ecclesia  vestra  Kingstuna.  Et  nisi  feceritis,  Ilbertus 
decanus  interdicat  divinum  ofificium  apud  Kingstuna."-^ 

The  next  writ,  issued  by  the  king,  perhaps  a^zuo  nil,  is 
of  a  different  nature,  but  should  be  noticed  in  this  connection. 
Instead  of  being  directed  to  the  tenant,  it  is  directed  to  the 
lord  of  the  lands  (abbot  Faritius),  and  belongs  therefore  to  the 
second  branch  of  the  writ  process.  It  proceeds  thus  :  "Si  Hugo 
filius  Turstini  noluerit  facere  servitium  quod  terrae  suse  tibi 
pertinet,  in  operatione  parcorum  et  pontium,  et  de  omnibus 
aliis  rebus,  tunc  praecipio  ut  tu  ipse  inde  justitiam  facias,  ut 
omnia  quae  facere  debet,  faciat."4 

'  Placita  Ang.-Norm.  92.  =  lb.  97.  3  ib.  105.  -f  lb.  109. 

M 


l62  HISTORY  OF  PROCEDURE. 

Another  writ  was  issued  by  the  king  in  favour  of  Faritius, 
requiring  the  same  Hugh  to  pay  money-dues.  This  writ  is 
directed  to  the  tenant,  and  proceeds  as  follows:  "  Preecipio  tibi 
ut  ita  geldas  cum  Faritio  abbati  de  Abbendona,  sicut  geldare 
solebas,  et  ita  ne  amodo  terra  sua  sit  esnamiata  pro  terra  tua 
super  decem  libras  forisfacturam  meam.  Quod  nisi  cito  feceris, 
Albricus  de  B.  te  constingat  per  pecuniam  tuam  ut  cito  facias, 
et  ita  ne  inde  amplius  clamorem  audiam  super  decern  libras 
forisfacturam."  ^ 

The  next  writ  is  addressed  by  Henry  the  First  to  all 
tenants  of  the  bishop  of  Lincoln  in  the  wapentake  of  W.,  and 
runs  thus  :  "  Pramcipio  quod  omnes  veniatis  ad  placitum  et 
wapentachium  episcopi  Lincolicnsis  quod  de  me  tenet,  per 
summonitionem  ministrorum  suorum  ;  et  faciatis  ei  omnes 
rectitudines  et  consuetudines  in  omnibus  rebus  quas  eis  debetis, 
de  terris  vestris  ad  illud  wapentachium,  ita  bene  et  plenarie 
sicut  unquam  plenius  fecistis  Roberto  episcopo  vel  alicui 
antecessor!  suo,  et  quas  juste  facere  debetis  :  et  nisi  feceritis 
ipse  vos  justiciet  per  pecuniam  vestram  donee  faciatis,  ne 
perdam  pecuniam  meam  quam  episcopus  mihi  inde  reddere 
debet."  2 

The  next  writ  is  issued  by  Henry  the  Second,  anno  1160, 
and  directed  to  the  tenant.  It  is  as  follows :  "  Praecipio  quod 
juste  respondeas  abbati  Sancti  Augustini  de  operibus  expensis 
de  parte  tua  terrce  de  P.,  sicut  tu  et  antecessores  tui  solebatis 
facere  tempore  regis  Henrici  avi  mei  ;  et  nisi  feceris,  vicecomes 
Cantia:  faciat  fieri,  ne  amplius  inde  clamorem  audiam  pro 
pcnuria  recti." -5 

The  same  king  directs  the  following  writ  to  the  tenants  of 
the  abbot  of  Gloucester,  within  the  town  :  "  Prsecipio  vobis  quod 
rcddatis  abbati  Gloucestriam  de  terris  quas  de  ipso  tenetis 
omnes  consuetudines  et  rectitudines  quas  inde  solebatis  reddere 
tempore  avi  mei  regis  Henrici ;  quia  de  illis  quai  ad  jus 
ecclesia}  pertinent,  nullam  quietudinem  vobis  concessi."-^ 

'  Placita  Ang.-Norm.  Iio.  -  lb.  139.         ^  lb.  207.         '■  lb.  254. 


THE   WRIT   PROCESS.  163 

The  last  writ  before  Glanvill's  treatise  is  of  the  year  1 180, 
and  is  witnessed  by  Glanvill  himself.  It  is  addressed  by  the 
king  to  the  men  of  Thanct,  tenants  of  the  abbot  of  St.  Augustine, 
and  is  as  follows:  "  Priiicipio  vobis  quod  juste  et  sine  dilatione 
faciatis  prai^fato  abbati,  domino  vestro,  omnia  servitia  ct  con- 
suetudines  et  jura  quai  ci  facere  debetis  de  feodis  vestris,  et 
quae  predecessoribus  suis  facere  solebatis  ;  et  nisi  feceritis,  vice- 
comes  de  Kent  faciat  fieri,  ne  inde  amplius  clamorcm  audiam 
pro  defectu  recti."  ^ 

Glanvill's  treatise  contains  no  writs  of  this  kind  addressed 
to  the  defendant.  But  writs  addressed  to  the  sheriff,  implying 
the  refusal  of  the  defendant  to  perform  the  services  or  to  pay 
the  money  due  the  plaintiff,  are  given.  The  following  is  one  : 
"  Prascipio  tibi  quod  justicies  N.  quod  juste  et  sine  dilatione 
faciat  R.  consuetudines  et  recta  servitia,  quje  ei  facere  debet 
de  tenemento  suo,  quod  de  eo  tenet  in  villa  ilia,  sicut  rationa- 
biliter  monstrare  poterit  eum  sibi  debere,  ne  oporteat  eum 
amplius  inde  conqueri  pro  defectu  recti." - 

Glanvill's  writ  of  debt  for  money  due  by  loan  is  process  of 
the  King's  Court.  It  appears  to  be  one  of  the  writs  heretofore 
mentioned  by  which  the  King's  Court  acquired  jurisdiction  of 
causes  which  formerly  belonged  exclusively  to  the  local  courts. 
The  writ  referred  to  is  as  follows :  "  Rex  vicecomiti  salutem. 
Praecipe  N.  quod  juste  et  sine  dilatione  reddat  R.  centum 
marcas  quas  ei  debet,  ut  dicit,  et  unde  queritur  quod  ipse  ei 
injuste  deforciat,  et  nisi  fecerit,  summone  eum  per  bonos  sum- 
monitores  quod  sit  coram  mc  vel  justiciis  meis  apud  West- 
monasterium  a  clauso  Paschaj  in  quindecim  dies  ostcnsurus 
quare  non  fecerit."-^ 

The  first  of  these  two  writs  is  but  slightly  varied  from 
those  Avhich  precede  it,  though  the  variation  is  sufficient  to 
show  the  freedom  of  the  process  from  fixed  formalism.  The 
second  writ  varies  more  from  its  predecessors  ;  but  the  diver- 
gence marks  little  more  than  the  fact  that  Glanvill's  writ  is 

'  riacita  Ang.-Norm.  225.     =  Glanvill,  lib.  9,  cc.  9,  10.     3  ib.  lib.  10,  c.  2. 

M   2 


i64  HISTORY   OF   PROCEDURE. 

process  of  the  King's  Court.  Such  process,  as  a  remedy,  was 
at  some  time  new  to  the  Kings  Court ;  but  it  is  conceived 
that  it  was  new  only  to  the  forum.  The  remedy  itself,  we 
apprehend,  was  not  new  as  a  form  of  action.  Debts  had 
always  been  created  by  mere  loan  of  money,  and  payment 
enforced  by  the  local  courts  ;  and  though  the  manorial  writs 
above  quoted  as  to  money  dues  were  issued  to  enforce  dues 
arising  by  reason  of  tenure,  it  is  hardly  supposable  that  when 
the  debt  arose  from  a  loan  or  the  like — the  subject  of  the  last 
quoted  writ  from  Glanvill — any  materially  different  process 
was  sought  from  the  king  on  failure  of  the  local  courts  to  do 
justice.  The  language  of  the  writ  of  debt  of  Glanvill,  from 
the  words  "  et  nisi  fecerit  "  on  to  the  end,  is  the  peculiar  lan- 
guage of  process  of  the  King's  Court ;  but  the  first  half  of  the 
writ  is  of  the  same  tenor  as  the  manorial  process,  and  serves 
somewhat  to  confirm  the  view  that  the  writ  of  Glanvill  is  an 
adaptation  of  ancient  process,  and  not  the  creation  of  a  new 
form  of  action.! 

It  should  be  added  that  Glanvill  has  also  a  writ  of  right 
for  debt,  which  may  be  compared  with  the  writ  of  Roger, 
bishop  of  Salisbury,  above  quoted.  There  is  a  gap  of  at  least 
seventy  years  between  the  two  writs  ;  during  which  time  such 
writs  may  have  diverged  from  the  others  which  we  have 
quoted.  At  all  events  Glanvill's  writ  is  modelled  after  another 
class  of  precepts,  to  wit,  the  general  writs  of  right  heretofore 
quoted.  It  runs  as  follows  :  "  Rex  N.  salutem.  Precipio  tibi, 
quod   sine   dilatione    plenum  rectum    teneas  N.  de   centum 


'  The  writ  not  being  new,  there  is  no  need  of  supposing  the  creation  of  any 
new  form  of  action.  Indeed,  the  practical  difficuUies  in  the  way  of  introducing 
any  new  form  of  action  in  those  times  of  the  supremacy  of  usage  must  have  been 
fairly  insurmountable.  Remedies  grew,  but  were  not  made  before  the  thirteenth  cen- 
tury. Invention  did  not  come  before  the  reign  of  Edward  the  First.  Usage  then 
first  began  to  yield  to  statute.  Nor  would  an  entirely  new  writ  in  Glanvill's  time 
(if  such  there  were)  necessarily  imply  a  new  form  of  action.  For  every  common 
violation  of  law  there  was  an  ancient,  established  form  of  plaint.  And  it  may  be 
added  that  in  all  the  remodellings  of  process  this  underwent  no  further  change  than 
was  inevitable  by  mere  lapse  of  time. 


THE   WRIT   PROCESS,  165 

solidatis  redditus  in  villa  ilia,  quam  clamat  tenere  de  te  per 
liberum  servitium,  etc.  Et  nisi  feceris,  vicecomcs  Oxonie 
facial,  ne  amplius  inde  clamorem  audiam  pro  defcctu  recti."  i 

It  is  sufficient  to  say  that  the  modern  writ  of  debt  did  not 
spring  from  this  writ.  The  history  of  the  modern  writ  may 
be  thus  summarised  :  i.  A  period  in  which  the  precept  was 
formless,  unsettled  material.  This  was  coming  to  an  end  in 
the  time  of  Henry  the  First.  2.  Then  a  period  tending  to 
distinct  settlement  of  form,  during  which  there  is  little  dif- 
ference between  a  writ  for  the  non-performance  of  services 
due  by  reason  of  tenure  and  a  writ  for  the  non-payment  of 
money  loaned.  This  ended  in  the  time  of  Henry  the  Second. 
3.  The  time  of  Glanvill's  treatise,  when  each  of  these  writs 
assumes  definite  form  and  becomes  de  cursu  ;  the  writ  for 
money  loaned  being  the  parent  of  the  modern  writ  of  debt. 

Before  leaving  the  writs  of  right  of  the  foregoing  class,  it 
should  be  noticed  that,  dissimilar  from  the  writ  of  right  of 
debt  as  the  familiar  writ  of  entry  of  modern  times  might  at 
first  be  considered,  the  latter  writ  appears  in  fact  to  have 
been  framed  directly  from  one  of  the  writs  of  debt;  the  dif- 
ference between  them  being  scarcely  more  than  the  matter  of 
a  single  word.  Glanvill's  writ  "  de  summonendo  creditore  de 
restituendo  vadio  debitori "  is  as  follows  :  "  Rex  vicecomiti 
salutem.  Precipe  N.  quod  juste  et  sine  dilatione  reddat  R. 
totam  terram  (vel  terram  illam  in  villa  ilia)  quam  ei  invad- 
iavit  pro  centum  marcis,  ad  terminum  qui  preteriit,  ut  dicit, 
et  denarlos  suos  idem  recipiat  vel  quam  inde  acquietavit, 
ut  dicit,  et  nisi  fecerit,  summone  eum  per  bonos  summoni- 
tores,"  etc.2 

By  the  substitution  of  the  word  "  dimisit "  for  "  invadiavit " 
and  omitting  the  (for  the  writ  of  entry)  inappropriate  clause 
"  et  denarios  .  .  .  .  ut  dicit,"  the  writ  is  verbatim  the  writ  of 
entry  of  Bracton  ^  and  later  times.     Thus  this  writ  is  as  nearly 

^  Glanvill,  lib.  12,  c.  4. 

*  lb.  lib.  10,  c.  9.     See  c.  7  as  to  tlie  converse  case  of  the  creditor. 

3  Bracton,  317  b,  318. 


i66  HISTORY   OF   PROCEDURE. 

related  to  tlic  old  (Glanvill's)  writ  of  debt  as  detinue  is  to 
the  modern  writ  of  debt ;  and  it  is  actually  nearer  to  the 
form  of  Glanvill's  writ  of  debt  than  is  the  very  offspring  of 
that  writ,  the  modern  writ  of  debt.i  Out  of  the  writs  of  right, 
therefore,  have  arisen  the  (manorial)  writ  of  trespass,  the  writs 
of  debt  and  of  detinue,  and  the  writ  of  entry. 

The  history  of  Glanvill's  writ  of  right  "  ne  injustc  vexes," 
which  was  intended  to  restrain  landlords  from  oppressive 
exactions  upon  their  tenants,^  though  it  has  not  the  interest 
attending  connection  with  more  modern  process,  affords  an 
equally  clear  illustration  of  the  growth  of  the  English  writs. 
The  number  of  writs  in  the  nature  of  the  writ  referred  to  is 
almost  without  limit,  and  their  variations  in  form  are  very 
great ;  but  it  will  not  be  necessary  to  refer  to  any  that  are 
not  in  the  direct  order  of  development  towards  Glanvill. 
These  writs  belong  to  the  third  branch  of  the  writ  process  ; 
mandates  addressed  to  defendants,  or  to  persons  who  might 
be  defendants,-^  including  commands  and  prohibitions. 

In  a  writ  addressed  by  William  the  Conqueror  to  his 
justiciars,  he  says  :  "  Defendite  ne  Remigius  episcopus  novas 
consuetudines  requirat  infra  insulam  de  Heli.  Nolo  enim  ut 
ibi  habeat,  nisi  illud  quod  antecessor  ejus  habebat  tempore 
regis  Edwardi,  scilicet  qua  die  ipse  rex  mortuus  est,  et  si 
Remigius  episcopus  inde  placitare  voluerit,  placitct  inde  sicut 
fecisset  tempore  regis  Edwardi,  et  placitum  istud  sit  in  vestra 
prsesentia."  4 

The  next  is  by  the  same  king,  and  is  addressed  to  the 
abbot  of  Peterborough.  It  is  as  follows :  "  Mando  tibi  et 
praccipio  ut  permittas  abbatem  Sancti  Edmundi  sufficienter 
accipere  de  petra  ad  ecclesiam  suam  sicut  hactenus  habuit,  et 
non  amplius  sibi  impedimentum  facias  in  adducendis  pctris 
ad  aquam,  cjuam  antca  fecisti."  '=> 

'  See  Fitzh.  Natura.  Brevium,  273.         -  See  Magna  Charta,  c.  lo. 

^  The  writs  to  the  king's  officers  infra  are.probaljly  Ijoth  commands  to  them  in 
the  nature  of  injunctions  and  also  commissions  of  authority  to  them  to  restrain  the 
acts  of  others.  '•  Placita  Ang.-Norm.  27.  s  ib.  32. 


THE   WRIT   PROCESS.  167 

The  next  writ  to  be  noticed  is  by  Henry  the  First,  anno 
1 1 10.  It  is  addressed  to  all  the  king's  barons,  sheriffs,  and 
servants,  and  proceeds  thus  :  "  Prohibeo  ne  aliquis  disturbct 
ullo  modo  carreiam  Sanctaj  Maria:  de  Abbendona,  nee  aliquid 
aliud  quod  sit  dominicum  abbatis  vel  monachorum  ejus,  vel 
per  terram  vel  per  aquam  disturbet."  i 

In  a  writ  similarly  addressed,  Henry  the  Second  says  : 
"  Prsecipio  quod  abbas  et  monachi  de  Gloucestria  habeant  et 
tcneant  aquam  qua^  currit  per  abbatiam  suam  bene  et  in  pace 
et  juste  et  integre,  sicut  habuerunt  melius  tempore  Henrici 
regis,  avi  mei.  Et  prohibeo  ne  quis  disturbet  cursum  illius 
aquas,  desicut  ivit  tempore  Henrici  regis,  avi  mei,  super  decem 
libris  forisfactura:."2 

In  another  writ  addressed  to  the  same  persons,  the  same 
king  says  :  "Praicipio  quod  permittatis  abbatem  et  monachos 
Gloucestri^e  facere  et  habere  bene  et  in  pace  et  juste  piscariam 
suam  de  Bramptona  in  eodem  loco  ubi  fuit  tempore  regis 
Henrici,  avi  mei  ;  nee  inde  eos  disturbetis,  nee  aliquam  eis 
injuriam  vel  contumeliam  faciatis."^ 

In  still  another  \\x\t  addressed  to  the  sheriff  of  Hereford 
apparently  about  the  same  time,  the  king  says  :  "  Prsecipio 
quod  juste  deducas  abbatem  et  monachos  GloucestricC  de  una 
hyda  terr^e  de  la  Hyde  quam  tenent.  Et  prohibeo  ne  ipsi 
inde  injuste  vexentur,  vel  in  plaeltum  ponantur,  aut  in  aliquas 
consuetudines  quas  facere  non  solebant  tempore  Henrici,  avi 
mei.  Et  nisi  feceris,  justitia  mea  faciat,  ne  amplius  inde 
clamorem  audiam  pro  penuria  recti." 4 

The  last  writ  to  be  noticed  before  the  time  of  Glanvili  is 
the  following,  by  the  same  king,  addressed  to  Adam  de  Port : 
"  Prohibeo  tibi  ne  injuste  vexes,  vel  vexari  permittas,  abbatem 
Gloucestriae  de  libero  tenemento  suo  de  Litletone,  nee  ab  eo 
inde  exigas,  vel  exigi  permittas,  consuetudines  vel  servitia  qucne 
inde  facere  non  debeat  vel  solebat,  nee  ullam  ci  inde  injuriam 
vel  molestiam  facias  aut  gravamen.     Et  nisi  feceris  vicecomes 

'  Placita  Ang.-Norm.  105^  -  lb.  253*  3  ib^  256.  ■»  Ibid. 


i68  HISTORY  OF  PROCEDURE. 

de  S.  faciat,  ne  inde  amplius  clamorem  audiam  pro  defectu 
recti  vel  justitiae."  ^ 

This  writ  differs  only  in  the  slightest  possible  manner  from 
Glanvill "s  writ,^  and  may  here  be  taken  for  it,  to  save  un- 
necessary repetition.  The  writ  is  without  date,  and  may 
possibly  be  of  Glanvill's  time  ;  but  the  probability  is  that  it  is 
earlier. 

The  common  writs  for  the  return  of  fugitives,  also  of  the 
third  class,  may  next  be  noticed.  About  the  year  1107, 
Henry  the  First  issued  three  writs  of  this  kind  in  favour  of  the 
abbot  of  Abingdon  ;  each  differing  somewhat  in  form  from 
the  others.  The  first  is  addressed  to  all  the  king's  sheriffs  and 
officers  in  whose  bailiwicks  fugitives  of  Abingdon  might  be 
found,  and  runs  thus  :  "  Pra:cipio  vobis  quod  plene  et  juste 
faciatis  habere  abbati  Abbendone  omnes  fugitivos  suos,  cum 
tota  pecunia  et  catallo  suo^  ubicumque  ipsi  inventi  fuerint ;  et 
prohibeo  ne  aliquis  eos  ei  vel  pecuniam  suam  super  hoc  injuste 
detineat,  super  decem  libris  forisfacturx." -^ 

The  second  writ  is  addressed  to  Hugh  of  Bocland,  Robert 
de  F.,  and  others  named,  and  proceeds :  "  Praecipio  vobis  ut 
juste  et  sine  mora  faciatis  redire  ad  abbatiam  de  Abbendona 
omnes  fugitivos  suos,  et  cum  tota  pecunia  sua,  ubicumque  sint, 
et  ita  ne  inde  amplius  clamorem  audiam  pro  recti  penuria,"*  et 
nominatim  hominem  qui  est  in  terra  Roberti  de  F.,  et  cum 
tota  pecunia  sua."^ 

The  third  writ  is  addressed  generally,  and  runs  as  follows  : 
"  Praecipio  vobis  ut  sine  aliqua  mora  faciatis  habere  Faritio 
abbati  de  Abbendona  omnes  homines  suos,  qui  de  terra  sua 
exierunt  de  Walingcford  propter  herberiam  curia;  mea:^,  vel 
propter  alias  res,  et  cum  omni  pecunia,  ubicumque  sint."^ 

The  next  writ  is  dated  in  the  year  1175,  the  year  before 

'  Placita  Aug. -Norm.  252.  -  lb.  315.  -^  lb.  94. 

"  This  clause  indicates  that  the  writ  was  not  final  process  after  judgment  in 
the  court. 

5  riacita  Ang.-Nonn.  95.  ^  Ibid. 


THE  WRIT   PROCESS.  169 

the  Assise  of  Northampton,  at  which  Glanvill  was  appointed 
one  of  the  three  justiciars  for  the  northern  circuit. ^  This  writ, 
after  a  general  address,  proceeds  thus  :  "  Pra^cipio  vobis  quod 
juste  et  sine  dilatione  faciatis  habere  R.  abbati  de  Abbendonia 
omnes  nativos  et  fugitivos  suos  cum  catalHs  suis,  ubicumquc 
inventi  fuerint  in  bailHis  vestris,  nisi  sint  in  dominis  meo,  qui 
fugerunt  de  terra  sua  post  mortem  regis  Henrici,  avi  mei  ;  et 
prohibeo  nc  quis  eos  injustc  detincnt,  super  forisfacturam 
meam."- 

This  writ  varies  even  less  from  Glanvill's  writ  than  it  does 
from  the  preceding  precepts.  The  writ  in  Glanvill  is  addressed 
to  the  sheriff;  it  adds  the  words  "et  cum  tota  sequela  sua  " 
(i.e.  with  all  their  issue) ;  and  for  the  limitation  clause  "  post 
mortem  regis  Henrici,  avi  mei,"  substitutes  "post  primam 
coronationem  meam."-^  In  other  respects  the  writs  are  exactly 
alike. 

We  proceed  now  to  the  first  branch  of  the  writ  process, 
to  wit,  the  writs  of  summons  ;  the  question  for  consideration 
being  whether  the  recognitions  of  Glanvill  have  probably  gone 
through  a  course  of  development  similar  to  that  of  the  writs 
already  examined.  The  only  one  of  the  recognition  writs  of 
which  there  exists  material  for  pursuing  such  an  inquiry  is 
the  writ  of  novel  disseisin;  and  the  material  suited  to  the 
thorough  study  of  this  writ  even  is  not  abundant.  Indeed, 
no  such  material  is  known  to  exist  as  that  w^iich  has  been 
used  in  the  examination  of  the  several  writs  heretofore  under 
consideration.  Those  writs  were  process  for  instituting  suits 
in  the  County,  in  the  Hundred,  or  Manorial  Courts,  affecting 
for  the  greater  part  religious  houses  ;  and  they  were  preserved 
as  part  of  the  muniments  of  title  of  those  corporations.  The 
writ  of  novel  disseisin,  however,  issued  as  process  for  the  trial 
of  a  cause  in  the  King's  Court,  where  the  religious  houses, 

»  I  Beiiedictus,   loS  ;  ante,  p.  89. 

=  Placita  Ang.-Norm.  220.  3  Glanvill,  lib.  12,  c.  il. 


170  HISTORY   OF  PROCEDURE. 

which  would  be  most  Hkcly  to  preserve  the  writs,  seldom 
litigated.  Actions  affecting  realty  were  brought  then  as  now 
where  the  land  la\' ;  and  as  the  courts  of  franchise  possessed 
or  readily  obtained  jurisdiction  over  causes  affecting  their 
interests,  there  was  ordinarily  no  occasion  for  resorting  to  the 
King's  Court  for  trials  of  that  sort.  Then,  the  final  adoption 
of  the  writs  of  Glanvill  rendered  it  useless  to  preserve,  among 
the  records  of  the  King's  Court,  the  old  and  superseded  writs. 
The  consequence  is,  that  no  writs  of  novel  disseisin,  in  the 
strict  sense  of  the  term  (as  process  of  the  King's  Court),  are 
known  to  exist,  except  those  given  by  Glanvill.  It  can- 
not therefore  be  decisively  and  finally  demonstrated  that 
Glanvill's  writ  of  novel  disseisin  was  a  development  in 
regular  course  from  older  material.  But  it  can  be  made  to 
appear  more  than  probable  that  this  was  the  case ;  or  rather 
it  can  be  shown  to  be  highly  probable  that  the  writ  referred 
to  was  an  adaptation  of  the  essential  features  of  earlier 
process. 

It  is  the  general  opinion  of  competent  writers  that  the 
recognitions  of  Glanvill,  in  the  form  in  which  they  appear  in 
Glanvill's  treatise,  are  of  the  reign  of  Henry  the  Second,  or 
at  all  events  of  the  latter  half  of  the  twelfth  century ;  one 
writer  thinking  they  shortly  antedate  the  accession  of  that 
king  to  the  throne  of  England,  i  Now  it  is  only  necessaiy  to 
show  that  writs  exist  among  the  monastic  records  which 
served,  though  in  no  fixed  mode,  the  same  special  purpose, 
the  redress  of  disseisins,  as  did  the  writ  of  novel  disseisin, 
and  that  these  writs,  in  all  their  stages,  make  use  of  language 
characteristic  of  the  writ  under  consideration,  to  make  it 
reasonably  safe  to  infer  a  connection  between  them  and  the 
writ  of  novel  disseisin.  Or  rather,  it  will  be  safe  to  infer  the 
existence  of  similar  writs  in  the  King's  Court,  of  which  the 
monastic  writs  mentioned-  are  an  imitation;  which  writs  in 
the  King's  Court  will  supply  most  if  not  all  that  is  wanting 

'  Brunnerj  Scluvurg.  302-304.        "  Writs  lo,  or  in  favour  of,  the  monasteries, 


THE   WRIT   PROCESS.  171 

ill  the  monastic  precepts  to  make  a  perfect  model  of  the  writ 
in  question.  The  writs  directing  the  trial  of  a  cause  in  the 
County,  Hundred,  or  Manorial  Courts,  it  must  be  remembered, 
are  issued  for  the  mere  purpose  of  requiring"  or  authorising 
the  trial,  and  contain  no  further  directions  ;  while  the  writs  of 
the  King's  Court  arc  directed  to  the  procedure  with  which 
the  particular  suit  is  to  be  brought  to  trial,  specifying  the 
precise  nature  of  that  procedure  and  the  steps  to  be  taken  to 
carry  it  out.  The  latter  writs  always  contain  an  order  of 
summons  ;  the  former  seldom. 

The  characteristic  language  of  Glanvill's  writ  of  novel 
disseisin  (apart  from  the  language  which  makes  it  process  of 
the  King's  Court)  is  found,  as  in  the  writ  of  right,  in  the 
words  with  which  it  begins  :  "  Ouestus  est  mihi  N.  quod  R. 
injitste  et  sine  judicio  dissaisivit  Qvwxi  de  libero  tenemento,"'  etc. 
The  italicised  words  were  now  the  language  only  of  a  trial  of 
seisin  ;  that  is,  of  a  possessory  action.  They  never  occur  in 
any  writ  in  Glanvill  except  in  that  of  novel  disseisin  ;  nor 
is  there  any  known  writ  prior  to  Glanvill  in  which  those 
words  are  used  where  the  trial  can  be  shown  to  have  con- 
cerned anything  more  than  seisin,  unless  the  writ  were  double 
process.  2 

It  is  by  no  means  certain,  however,  that  trials  of  the  right 
of  property  may  not  sometimes  have  taken  place  under  the 
process  which  we  shall  endeavour  to  show  was  the  nearest 
relation  to  the  original  (if  it  were  process  of  the  King's  Court 
instead  of  manorial  or  vicontiel  process,  it  would,  in  our 
view,  be  the  actual  original)  of  the  process  of  novel  disseisin. 
The  writs  to  which  Ave  refer  merely  informed  the  sheriff, 
or  other  person  addressed,  of  the  complaint,  by  a  party 
named,  of  a  disseisin  "  injuste  et  sine  judicio,"  and  by  implica- 
tion or  by  express  language  required  him  to  try  the  cause  if  a 
defence  were  made.     Unlike  the  later  writ  of  novel  disseisin, 

'  Glanvill,  lib.  13,  c.  33. 

"  As  in  Abbot  Walkelin  v.  Turstin  Bassett,  Placita  Ang.-Norm.  197. 


1-3  HISTORY   OF    PROCEDURE. 

there  was  usually  no  direction  for  a  recognition,  nor  indeed 
for  any  particular  mode  of  trial.  There  is  a  suggestion  of  the 
cause  of  action,  and  a  command  to  put  the  demandant  into 
seisin  again  if  the  same  be  established.  All  else  is  left  for 
development  and  determination  at  the  trial.  The  pleadings 
may  then  assume  a  form  leading  to  the  duel,  or  the  issue 
may  turn  upon  the  interpretation  or  the  existence  of  charters, 
just  as  we  shall  hereafter  see  might  be  the  case  under  the 
writ  of  novel  disseisin  ;  or  the  case  may  be  such  that  the 
court  would  order  a  trial  by  inquisition,  recognition,  or  party- 
witness.  And  in  either  of  the  latter  cases,  though  the  ques- 
tion ordinarily  put  is  a  simple  question  of  fact  (e.g.  Was  the 
demandant  in  peaceable  possession  at  such  and  such  a  time, 
and  did  the  tenant  disseise  him  ?),  it  f/idj  be  a  question  of  the 
right  of  property  (e.g.  Of  whose  tenure  o^/^/it  this  land  to 
be  .?). 

Inasmuch,  then,  as  no  recognition,  generally  speaking,  was 
summoned  in  advance,  that  is,  by  virtue  of  the  writ,  what 
happened  in  Glanvill's  time  could  not  have  happened  in  the 
first  half  of  the  twelfth  century  or  before  ;  ^  to  wit,  the  setting 
aside  of  the  recognition  because,  upon  the  issue  afterwards 
joined  on  the  pleadings,  a  question  had  arisen  different  from 
that  for  which  the  recognition  had  been  summoned,  and  for 
the  answer  of  which  the  particular  recognitors,  as  acquainted 
with  the  fact,  had  been  chosen.  Glanvill's  recognition  pro- 
ceeded under  the  question  implied  by  the  writ,  or  not  all ; 
and  the  purpose  of  the  writ  failed  with  the  failure  of  the 
recognition. 2 

The  result  is,  that  if  our  view  of  the  connection  of  the 
earlier  writs  in  question  with  Glanvill's  writ  of  novel  disseisin 
is  correct,  an  important  change  had  in  the  meantime  trans- 
pired in  the  mode  of  procedure.  AVe  say  in  the  mode  of 
procedure,  for  the  writ  underwent  little  change  in  respect  of 

'  Unless  of  course  the  writ  (/A/  prescribe  a  recognition. 

*  This  subject  will  be  further  considered  in  a  future  chapter. 


THE   WRIT   PROCESS.  173 

form,  except  by  way  of  adding"  the  summons  of  the  recogni- 
tion. The  formal,  characteristic  language  of  the  old  writs  is 
still  used  in  the  later  precept.  That  addition  to  the  writ, 
however,  produced  clearly  all  the  change  that  had  occurred  in 
the  procedure.  Take  it  away  from  the  mandate,  and  nothing 
of  substance  remains  but  the  form  of  the  older  writs  ;  to  wit, 
the  statement  of  a  complaint  of  a  disseisin  "  injuste  et  sine 
judicio,"  with  a  command  to  put  the  demandant  into  seisin 
again,  subject  of  course  to  the  result  of  the  trial.  The  change 
referred  to  consisted  in  the  general  adoption  of  possessory 
actions. 

When  and  how  had  this  change  of  procedure  come  into 
operation  ?  This  is  a  question  that  has  never  been  conclu- 
sively answered  ;  nor  can  it  be  so  answered  upon  any  evidence 
now  known.  A  suggestion  may,  however,  be  ventured  which, 
so  far  as  the  writer  is  aware,  has  not  before  been  made. 
Vacarius  taught  the  Roman  law  at  Oxford  in  the  closing  years 
of  the  reign  of  Stephen,  beginning  perhaps  in  the  year  1149.1 
In  the  course  of  his  labours  he  composed  nine  books  out  of 
the  Digest  and  Code  ;  and  one  of  his  chapters  bears  the  title 
of  the  corresponding  head  in  the  Digest,  "  De  actionibus  et 
obligationibus."  This  title  in  the  Digest,  as  is  well  known, 
treats  only  of  the  division  of  actions  into  real,  personal,  and 
mixed  ;  and  the  same,  it  may  be  presumed,  is  true  of  the 
chapter  in  the  (unpublished)  MS.  of  Vacarius.  But  when 
lecturing  upon  actions,  Vacarius  could  hardly  have  avoided 
teaching  of  the  other  division  of  actions,  that  of  the  canon 
law,  to  wit,  into  petitory  and  possessory  actions.^  At  all 
events,  it  is  clear  from  the  writers  of  the  time,  John  of  Salis- 


'  Upon  this  subject  we  refer  generally  to  Wenck's  Vacarius. 

-  This  distinction  of  the  canon  law  as  to  actions  was  perfectly  understood  in 
the  church  courts  of  England  at  the  beginning  of  the  thirteenth  century. — Chron. 
Evesham,  p.  130  (Rec.  Com.).  And  there  is  good  reason  to  believe  that  it  had 
then  been  understood  there  for  half  a  century,  and  that  it  was  adopted,  or  perhaps 
adapted,  into  the  temporal  courts  from  Rome,  The  only  question  is,  when  and 
how  this  was  done. 


174  "  HISTORY  OF  PROCEDURE. 

bury  in  particular,  that,  notwithstanding  the  inhibition  of  the 
teaching  and  use  of  the  Roman  law  which  followed  upon  the 
work  of  Vacarius,  an  interest  in  the  study  of  that  law  w^as 
excited  among  the  clergy,  which  went  on  regardless  of  the 
inhibition,  and  of  the  burning  of  books.  The  distinction 
between  actions  petitory  and  possessory,  it  must  be  believed, 
was  thus  learned  by  those  who  were  the  chief  men  of  affairs 
at  that  particular  time  more  perhaps  than  at  any  other. 
The  clergy  had  preserved  the  only  semblance  of  order 
and  good  government  during  the  turmoil  of  Stephen  and 
Matilda ;  and  it  was  through  their  power  and  intervention 
that  the  peace  of  Wallingford  had  been  effected  and  the 
succession  of  Henry  the  Second  settled.  These  men  were 
foremost  in  the  state  in  the  earlier  and  formative  years  of 
Henry's  reign;  and  if  it  should  turn  out  that,  in  the  execution, 
gradually  carried  out,  as  they  were,  of  the  reforms  provided 
for  by  the  peace  of  Wallingford  and  Winchester  {anno  1153), 
which  occurred  four  or  five  years  after  Vacarius  began  to 
teach  at  Oxford,  the  clergy  had  suggested  that,  without  doing 
violence  to  English  procedure,  the  nicety  and  precision  of  the 
Roman  classification  could  be  established  in  England,  it  would 
not  be  matter  of  surprise.  The  courts  and  the  people  were 
perfectly  familiar  with  inquisitions  and  recognitions  ;  the 
clerical  courts  had  constantly  made  use  of  them  during  the 
late  anarchy,!  regarding  them,  we  may  well  believe  (since 
they  were  men  of  sense  and  intelligence),  as  the  most  satis- 
factory modes  of  trying  causes  when  there  were  no  charters  ; 
and  it  would  be  a  natural  and  an  easy  matter  to  tack  the 
order  for  a  recognition  permanently  upon  the  existing  writs  of 
disseisin."  And  if  the  precedent  of  similar  action  in  Normandy 
was  already    before  them,  as   has  been  thought   by  several 

'  Ante,  p.  63. 

-  For  what  wo.  know  of  the  peace  of  Wallingford,  see  Roger  de  Wendover, 
anno  1153;  I  Twysden,  Script.  527;  i  Stubbs,  Const.  Hist.  332-334;  5  Freeman, 
Norm.  Conq.  220. 


THE   WRIT   PROCESS,  175 

eminent  writers/  the  result  would  be  all  the  more  probablc.2 
It  is  possible,  however,  that  the  attainment  of  the  Roman 
system  was  accidental. 

This  change  merely  supposes  that  what  was  occasional,  or 
rather,  frequent,  but  not  uniform  and  stable,  was  now  made 
the  established  order  of  things  in  actions  for  disseisins  ;  not, 
however,  that  the  writs  were  to  be  had  as  matter  of  right,  as 
will  hereafter  be  seen^  but  that,  when  authorised  to  issue,  they 
were  to  take  the  now  established  form.  That  writs  ordering 
recognitions  for  the  trial  of  disseisins  were  in  use  in  England 
prior  to  the  reign  of  Henry  the  Second,  and  that  therefore  the 
newly-established  writ  of  novel  disseisin  was  no  essential 
innovation  upon  the  ancient  procedure,  may  now  be  shown,-^ 

The  principle  of  Glanvill's  writ  of  novel  disseisin  was 
that  of  an  inquiry  per  patriaui  (that  is,  by  a  body  of  men  of 
the  community  sworn  to  speak  the  truth  dc  visit-  ct  audit n'^) 


'  The  evidence  of  this,  however,  is  slight  and  unsatisfactory. 

"  It  would  certainly  be  not  less  interesting  if  it  should  appear  that  the  Magna 
Assisa  was  also  one  of  the  results  of  the  reforms  agreed  upon  in  the  peace  of 
Wallingford.  For  seventeen  years  property  litigations  had  been  conducted  in  the 
clerical  courts,  as  we  have  seen  in  another  chapter  {ante,  pjj.  34,  37)  ;  and  the 
duel,  we  may  well  believe,  was  not  permitted  in  such  cases.  What  more  natural 
than  that  the  clergy  should  now  have  insisted  upon  carrying  this  reform  into  per- 
manent effect,  so  far  as  the  circumstances  and  prejudices  of  the  times  would  permit  ? 
And  for  this  they  would  have  the  precedent  of  not  a  few  of  the  king's  writs,  as  we 
shall  see  later  on. 

■^  In  a  collection  of  "  Assisai "  attributed  to  David  I.,  king  of  Scotland,  from  the 
year  1 124  to  the  year  11 53,  writs  both  of  novel  disseisin  and  of  mort  d'ancestor  are 
spoken  of  and  regulated  by  name  ;  but  the  language  used  shows  that  the  article 
could  not  have  been  earlier  than  the  last  quarter  of  the  twelfth  century,  even  if  so 
early  as  that.  The  article  is  as  follows:  "  Statuit  dominus  rex  quod  brevia  de 
morte  antecessoris  et  nove  dissaisine  nunquam  erunt  placitata  per  calumpniam 
petentis  nisi  tantum  per  assisam  bone  patrie  et  non  alitur  quia  illi  duodecim  qui 
electi  sunt  de  bona  patria  ad  assisam  faciendam  dicent  solummodo  suum  veredictum 
secundum  punctos  et  articulos  utriusque  brevis  et  secundum  hoc  indicabitur 
partibus." — Assise  Regis  David,  c.  35  ;  i  Acts  of  Pari,  of  Scotland,  325. 

■*  The  distinction  between  a  mere  inquisition  and  a  recognition  was  that  the 
former  might  be  held  by  the  court  itself  as  the  inquisitors ;  while  a  recognition 
was  effected  by  a  chosen  body  of  men,  not  sitting  as  part  of  the  court.  An 
example  of  the  former  may  be  seen  in  Glanvill,  lib.  2,  c.  6.  Both  made  inquiry 
as  to  the  facts  in  dispute,  but  the  recognition  had  to  ref^ort  {rccogiioscere). 


176  HISTORY   OF   PROCEDURE. 

as  to  how  the  seisin  stood  at  some  stated  previous  time. 
The  question  was,  Was  the  demandant  (or  his  prede- 
cessor in  right)  in  peaceable  possession  at  such  and  such 
a  time  ?  This  principle  of  the  writ  of  novel  disseisin 
was  indeed  as  old  as  Domesday  in  England,  and  much 
older  on  the  Continent.  We  turn  now  to  the  ancient 
records ;  and  first  to  the  informal  writs  of  the  eleventh 
century. 

In  one  of  the  earliest  English  writs  extant,  issued  for  the 
recovery  of  lands,  William  the  Conqueror  thus  addresses  his 
justiciars,  archbishop  Lanfranc,  Roger,  earl  of  Mortain,  and 
Geoffrey,  bishop  of  Coutances  :  "  Mando  vobis  et  praecipio  ut 
iterum  faciatis  congregari  omnes  scyras  qucie  interfuerunt 
placito  habito  de  terris  ecclesia;  de  Heli,  antequam  mea 
conjux  in  Normanniam  novissime  veniret.  Cum  quibus  etiam 
sint  de  baronibus  meis  qui  competentcr  adesse  poterunt,  et 
praedicto  placito  interfuerunt,  et  qui  terras  ejusdem  ecclesise 
tenent.  Quibus  in  unum  congregatis,  eligantur  plures  de 
illis  Anglis  qui  sciunt  quomodo  terras  jacebant  prcefatae 
ecclesia;  die  qua  rex  Edwardus  obiit,  et  quod  inde  dixerint 
ibidem  jurando  testentur.  Quo  facto  restituantur  ecclesiae 
terrae  quai  in  dominio  suo  erant  die  obitus  Edwardi,  exceptis 
his  quas  homines  clamabant  me  sibi  dedisse.  Illas  vero 
litteris  mihi  signate,  quae  sint  et  qui  eas  tenent."  ^ 

The  essential  feature  of  this  writ  is  the  direction  for  an 
inquiry  upon  testimony  of  the  vicinage  concerning  lands 
which  had  been  the  subject  of  an  unsatisfactory  trial ;  the 
inquiry  being  ordered  in  respect  of  the  title  on  the  day  upon 
which  Edward  the  Confessor  died.  The  title  as  it  then 
existed  was  to  prevail,  except  in  cases  of  gifts  made  by  the 
king  since  the  Conquest.^  Disseisins  prior  to  that  time,  if  any, 
were  to  be  disregarded,  if  the  occupant  was  then  peaceably 
possessed  :    later   ones   were   within   the   letter   of  the  writ. 

'  Placita  Ang.-Norm,  24. 

=  This  was  made  the  basis  of  decision  in  all  the  disputes  noticed  in  Domesday. 


THE   WRIT   PROCESS.  i-j-j 

Domesday  book  contains  numberless  cases  of  this  sort,  though 
no  writs  have  been  preserved. "f 

In  immediate  connection  with  the  foregoing  writ  there  is 
another  relating  to  the  same  lands,  addressed  by  the  Con- 
queror to  the  same  persons  in  this  language :  "  Facite  simul 
venire  omnes  illos  qui  terras  tenent  de  dominico  victu  ecclesia^ 
de  Heli,  et  volo  ut  ecclesia  eas  habeat  sicut  habebat  die  qua 
Edwardus  rex  fuit  vivus  et  mortuus,  et  si  aliquis  dixerit  quod 
inde  de  meo  dono  aliquid  habeat,  mandate  mihi  magnitudi- 
nem  terras,  et  quomodo  cam  reclamat,  et  ego  secundum  quod 
audiero  aut  ei  inde  escambitionem  reddam,  aut  aliud  faciam. 
Facite  etiam  ut  abbas  Symeon  habeat  omnes  consuetudines 
quas  ad  abbatiam  de  Heli  pertinent,  sicut  eas  habebat  ante- 
cessor2  ejus  tempore  regis  Edwardi.  Praeterea  facite  ut  abbas 
saisitus  sit  de  illis  theinlandis  quae  ad  abbatiam  pertinebant 
die  quo  rex  Edwardus  fuit  mortuus,  si  illi  qui  eas  habent  secum 
concordare  noluerint,  et  ad  istud  placitum  summonete  W.  de 
G.  .  .  .  et  alios  quos  abbas  vobis  nominabit."^ 

Beyond  the  fact  that  inquiry  is  directed  as  to  the  state  of 
the  tenure  at  a  prior  specified  time,  there  is  nothing  in  either 
of  these  writs  in  point  oS.  form  in  common  with  the  later  real 
property  writs  ;  and  they  are  here  quoted  partly  for  the  pur- 
pose of  showing  the  kind  of  material  from  which  we  must 
start  in  the  study  of  the  history  of  writs  for  the  trial  of 
seisin  ;  in  other  words,  the  shapelessness,  looking  to  form,  of 
process  of  the  kind  in  the  eleventh  century.  It  should  be 
added  that  these  writs,  as  their  terms  fairly  imply,  relate  in 
fact  to  disseisins;  from  which  kind  of  wrongs  the  church  at 
Ely  had  suffered  greatly  after  the  Conquest.'^ 


'  See  Placita  Ang.-Norm.  pp.  38-40,  50,  53-56;  Appendix  C.  pp.  293-307. 
Seisin  itself  might  be  decided  by  the  duel  in  some  cases.  Earl  Alan  v.  V\^ido, 
Placita  Ang.-Norm.  60.  Such  indeed  would  always  be  the  result  upon  impeaching 
the  word  of  a  witness. 

-  This  word  uniformly  means  "predecessor"  in  the  language  of  the  Norman 
period,  and  not  "ancestor"  in  the  sense  of  modern  times. 

3  Placita  Ang.-Norm.  24.  ■*  Ilx  22. 

N 


178  HISTORY   OF   PROCEDURE. 

The  essential  fact  with  regard  to  the  foregoing  writs  is 
that  they  contemplate  a  trial  of  the  question  stated  in  them 
by  the  testimony  of  witnesses  in  some  form,  and  that  that 
question  is  a  simple,  single  question  of  fact.  The  decision 
would  determine  nothing  but  that  question  of  fact,  if  the 
terms  of  the  writ  were  followed,  and  such  a  decision  did  not 
necessarily  determine  the  right  of  property.  Hence  the 
process  in  effect  was  like  that  of  the  later  novel  disseisin.  If 
the  writ  were  granted  after  an  issue  joined  upon  the  matter 
of  the  right  of  property,  the  question  of  title  turning  solely 
upon  the  question  stated  in  the  writ,  then  the  decision  would 
reach  the  right ;  but  the  writ  v\\as  granted  at  the  outset,  before 
the  pleadings.  In  the  ordinary  course  of  things  a  property 
writ  did  not  at  that  time  issue  in  advance  with  a  direction  to 
try  the  right  by  inquisition  or  recognition.  ^  Indeed,  when 
in  later  times  the  Magna  Assisa  was  introduced,  the  writ  for 
the  recognition  of  "  the  greater  right  "  was  granted  only  after 
issue  upon  the  pleadings.^ 

What  form  of  trial  in  fact  followed  after  the  issuance  of 
the  writs  quoted  does  not  appear ;  nor  would  that  be  material 
unless  it  were  clearly  stated  that  the  particular  form  of  trial 
had  was  a  recognition,  summoned  in  accordance  with  the 
terms  of  the  mandate.  Even  in  the  time  of  Glanvill,  as  we 
have  already  observed,  the  course  of  a  cause  begun  by  a  writ 
for  the  trial  of  a  question  of  seisin  could  be  entirely  deflected 
by  the  defendant's  plea  on  the  appearance  of  the  recognitors. 
From  a  simple  question  of  seisin,  the  cause  might  turn  into  a 
question  of  the  right  of  property,^  But  this  put  an  end  to  the 
recognition^  and  other  process  followed.4  The  recognition 
proceeded  only  ^\dlcn  the  original  question  suggested  by  the 
writ — whether  there  had  been  a  disseisin  of  the  plaintiff  with- 
out authority  of  law — remained  to  be  put  to  the  jurors. 

In  the  absence,  then,  of  complete  records  of  causes  (and 

'  Some  exceptions  will  be  noticed  later.  -  Glanvill,  lib.  2,  c.  3,  §  2. 

^  lb.  lib.  13,  c.  II,  §§  3,  4;  c.  20,  §  3.  4  IbiJ. 


THE   WRIT   PROCESS.  179 

we  generally  have  only  the  writ),  the  investigation  and  con- 
clusion must  be  based  mainly  upon  the  language  of  the  writ. 
Thus  far  we  certainly  have  none  of  the  technical  language  of 
the  writ  of  novel  disseisin  of  Glanvill. 

No  distinction  was  made,  it  seems,  before  the  middle  of  the 
twelfth  century  between  disseisins  of  lands  and  of  movables, 
such,  for  example,  as  ships  ;  and  writs  for  the  redress  of  dis- 
seisins of  personalty  may  therefore  be  quoted  in  the  present 
connection.  The  abbot  of  St.  Augustine  had  been  disseised 
of  a  ship  in  the  time  of  the  Conqueror ;  to  recover  which  he 
obtains  from  the  king's  son  the  following  writ  addressed  to 
the  sheriff  of  Kent :  "  Pra^cipio  quod  prascipias  Hamoni,  filio 
Vitalis,  et  probis  vicinis  de  S.,  quos  Hamo  nominavit,  ut  dicant 
veritatem  de  nave  abbatis  de  Sancto  Augustino,  et  si  navis 
ilia  perrexit  per  mare  die  qua  rex  novissime  mare  transivit, 
tunc  prcecipio  ut  modo  pergat  quousque  rex  in  Angliam 
veniat,  et  interim  resaisiatur  inde  abbas  praedictus.''^ 

Here  was  clearly  the  whole  principle  (as  to  movables)  of 
Glanvill's  novel  disseisin,  A  recognition  is  summoned  in 
advance  to  answer  a  particular,  simple  question  of  fact,  of 
recent  date,  knowledge  as  to  which  was  the  basis  of  the 
election  of  the  recognitors  ;  and  it  would  seem  to  follow,  as  it 
did  with  Glanvill's  writ,  that  if  at  the  trial  an  issue  were 
raised  different  from  that  involved  in  the  question  of  the  writj 
the  recognition  must  have  been  set  aside  as  unqualified  to 
decide  the  case.  But  that  such  a  turn  did  not  occur,  and  that 
a  recognition  (probably)  tried  the  question  of  the  writ,  ap- 
pears from  another  writ,  issued  afterwards  by  the  same  son  of 
the  king  to  the  sheriff  of  Kent,  as  before,  in  these  words  : 
"  Prsecipio  quod  resaisias  abbatem  de  Sancto  Augustino  de 
nave  sua,  sicut  ego  praecepi  per  meum  aliud  breve,  et  sicut 
recognitum  fuit  per  probos  homines  comitatus,  quod  inde 
abbas  erat  saisitus,  die  qua  rex  mare  novissime  transivit ;  et  in 
pace  teneat."2 

'  Placita  Ang.-Norm.  33.  "  Ibid. 

N    2 


i8o  HISTORY   OF    PROCEDURE. 

This  second  writ  does  not  indeed  state  that  a  recognition 
took  place,  but  the  language  used,  "  et  sicut  recognitum  fuit," 
is  the  language  usually  applied  in  later  times  to  that  mode  of 
trial  ;  and  this  taken  in  connection  with  the  direct  command 
in  the  first  writ  to  summon  men  "  quos  Hamo  nominavit," 
leaves  little  room  for  doubt  that  the  trial  was  by  recognition. 
But  even  if  it  was  by  community  (party)  witness,  the  fact 
would  still  remain  that  a  simple  question  of  the  recent 
seisin  was  the  only  question  put.  However,  we  have  yet  no 
characteristic,  formal  language. 

The  two  following  writs  of  Henry  the  First  indicate  some- 
what of  change  from  the  shapelessncss  of  the  foregoing.  They 
do  not,  indeed,  resemble  either  of  the  preceding  ones  ;  nor  is 
either  of  them  used  as  a  perfect  precedent  of  the  other.  There 
is,  however,  sufficient  resemblance  between  them  to  be  worthy 
of  notice  ;  and  the  suggestion  of  Glanvill  in  the  one,  "  unde 
ipsi  sunt  injuste  et  sine  judicio  dissaysiti,"  and  in  the  other, 
"  si  sine  judicio  dissaysisti  abbatem,"  is  to  be  observed. ' 

The  first  of  these  writs  is  addressed  to  Walter,  son  of 
Wisceo,  and  runs  thus  :  "  Pra^cipio  quod  juste  et  plene  resaisyas 
abbatem  et  monachos  Gloucestriae  de  tern's  et  ecclesiis  et 
decimis  et  omnibus  rebus  quas  pater  tuus  eis  dedit  in  elemosi- 
nam,  unde  ipsi  sunt  itijustc  ct  sine  judicio  dissaysiti  ;  et  bene  et 
in  pace  et  juste  et  honorifice  teneant,  sicut  ipsi  hoc  dirationare 
poterint  per  suos  legales  testes  quod  pater  tuus  eas  eis  in 
elemosinam  dedit  ;  et  nisi  feceris,  episcopus  Sancti  David 
faciat  ne  ipsi  quicquam  perdant  pro  penuria  recti  vel  justitiai, 
ncque  ego  amplius  inde  clamorem  audiam."^ 

The  other  writ,  addressed  to  William,  the  constable,  is  as 
follows  :  "  Si  sine  judicio  dissaysisti  abbatem  Gloucestri.ne  de 

'  This  expression,  used  possibly  iu  a  technical  sense,  occurs  in  England  as 
early  as  in  the  reign  of  Rufus.  See  Placita  Ang.-Norm.  308.  And  it  is  not  im- 
probable that  we  should  find  it  in  writs  of  the  eleventh  century  if  more  were  known, 
it  cannot  be  positively  affirmed  that  technical  language  was  unknown  to  the  writs 
of  that  time  without  a  knowledge  of  all  that  were  used  ;  but  those  that  we  do 
know  are  shapeless  and  untcchnical. 

^  lb.  128. 


THE   WRIT   PROCESS.  i8i 

Coleby  quod  pater  tuus  declerat  monachis  Glouccstri.ne  in 
elemosinam,  tunc  prajcipio  quod  eum  juste  inde  resaysias,  ct 
teneat  ita  bene  sicut  tenuit  die  qua  pater  tuus  fuit  vivus  et 
mortuus,  ita  nc  super  hoc  amplius  ei  injuriam  facias,  ne  sine 
justo  judicio  dissaysias.  ...  Et  nisi  feceris,  justitia  mea  et 
vicecomes  faciant."  ^ 

Passing"  over  the  reign  of  Stephen,  as  wanting  in  writs  of 
the  kind  under  consideration,  we  come  to  the  time  of  Henry 
the  Second.  Here  we  shall  find  the  course  of  development 
renewed  at  the  very  outset  ;  alinost  every  writ  for  the  recovery 
of  lands  pointing  directly  to  Glanvill.  The  two  following  writs 
of  the  king  were  executed  in  the  course  of  one  and  the  same 
litigation,  perhaps  in  the  year  1154: 

The  first  is  addressed  to  the  sheriff  of  Berkshire,  and 
jDroceeds  thus  :  "  Si  abbas  de  Abbendonia  injustc  ct  sine  judicio 
dissaisatus  est  de  terra  sua  de  Mercheham  et  de  Middletona, 
et  de  Appelford,  tunc  prajcipio  quod  eum  inde  sine  dilationc 
et  juste  resaisias  ;  et  teneat  ita  bene  et  in  pace  et  juste  sicut 
ecclesia  de  Abbendonia  melius  eam  tenuit  tempore  Henrici 
regis,  avi  mici ;  .  .  .  et  nisi  feceris,  justitia  mea  faciat  fieri."  2 

This  writ  having  been  disobeyed,  a  second,  in  the  nature 
of  an  alias,  is  addressed  to  the  sheriff  of  Oxford  and  his 
officers,  and  runs  as  follows  :  "  Prajcipio  vobis  quod  si  abbatia 
de  Abbendonia  injuste  dissaisiata  est  de  ecclesia  de  Mercheham 
et  pertinentiis  suis,  et  de  una  hida  terras  et  dimidia  in 
Middeltuna,  et  de  una  hida  in  Appelford,  sine  dilatione  eam 
inde  resaisiatis,  et  in  pace  tenere  faciatis,  sicut  melius  tenuit 
tempore  Henrici  regis,  avi  mei ;  et  nisi  feceritis,  justitia  mea 
faciat."  3 

These  writs  were  succeeded  within  a  few  years  by  the 
following,  issued  by  the  king  and  directed  to  the  sheriff  of 
Berkshire  and  his  bailiffs  :  "  Si  ecclesia  de  Abbendona  habuit 
decimam  de  Mercham  ad  luminare  ecclesice,  tempore  Henrici 
regis,  avi  mei,  et  anno  et  die  qua  fuit  mortuus  et  vivus,  et  post, 

^  riacita  Ang. -Norm.  130.  -  lb.  169.  ■>  lb.  170. 


i82  HISTORY   OF   PROCEDURE. 

et  inde  sit  dissaisita  injiiste  ct  sinejudicio,  tunc  praeclpio  quod 
sine  dilatione  inde  earn  resaisiatis  ;  et  ita  bene  et  in  pace  et 
libere  et  juste  et  quietc  tenere  faciatis  sicut  melius  et  liberius 
tenuit  tempore  Henrici  regis,  avi  mei."  ^ 

About  this  time  tlie  abbot  of  Abingdon  was  disseised  of  a 
market  at  Abingdon  by  a  temporary  mandate  of  the  king,  on 
complaint  of  men  of  Wallingford  that  the  abbot  was  not 
entitled  to  it  ;  his  prescription,  as  they  affirmed,  not  running 
back  to  the  reign  of  Henry  the  First.  The  abbot  now  pro- 
cures, in  turn,  a  writ  from  the  king,  ordering  a  recognition 
upon  this  very  point  of  the  duration  of  the  prescription ;  and 
on  that  point  the  recognition  proceeds.  The  writ  of  course 
omits  to  speak  of  the  disseisin  as  "  injuste  et  sine  judicio," 
because  it  was  effected  by  the  king's  own  order.  It  is  addressed 
to  the  justiciar,  Robert,  earl  of  Leicester,  and  runs  thus  :  "Pra;- 
cipio  ut,  convocato  omni  conventu  [comitatu  .'']  B.,  xxiv. 
homines  de  senioribus  qui  Henrici  regis,  avi  mei,  tempore 
fuerunt,  eligere  facias.  Qui  si  jurare  poterint  quod  in  diebus 
ejus  plenum  mercatum  in  A.  fuerit,  ita  sit  et  nunc.  Si  vero 
nee  viderint,  nee  jurare  poterint,  ut  rectum  est,  prohibeatur, 
ne  amplius  inde  clamorem  audiam."- 

The  last  writ  of  this  reign  to  be  noticed  before  quoting 
Glanvill  is  the  following,  addressed  by  the  king  to  Ralph 
Suessio  :  "  Si  monachi  dc  Abbendonia  sunt dissaisiatiinjuste  ct 
sine  judicio  de  terra  Nigelli  de  Colebroc  quam  clamant,  tunc 
pra^cipio  quod  juste  et  sine  dilatione  eas  inde  resaisias,  sicut 
inde  saisati  fuerunt  tempore  regis  Henrici,  avi  mei ;  et  nisi 
feceris,  justitia  vel  vicecomes  mens  faciat  fieri." -^ 

In  a  series  of  writs  relating  to  disseisins,  therefore,  from 
the  time  of  Henry  the  First  to  about  the  fifth  year  of  Henry 
the  Second,  possibly  a  little  later,  w^e  have  the  technical, 
characteristic  language  of  Glanvill's  writ  of  novel  disseisin  ; 
with  at  last  a  state  of  tolerable  regularity  in  the  whole  make- 
up of  the  precept.     And  in  the  next  to  the  last  writ,  the  whole 

'  Placita  Ang.-Noim.  197.  -  lb.  200,  *  lb.  250. 


THE    WRIT    PROCESS.  183 

writ  of  Glanvill,  save  its  verbal  aspect,  is  barely  escaped  by 
the  accident  that  the  disseisin  could  not  be  spoken  of  in  the 
usual  way.  With  these  precedents  before  the  reformers  of  the 
time,  especially  with  the  writ  as  to  the  market  of  Abingdon, 
or  others  like  it,  of  which  there  were  doubtless  not  a  few,  the 
establishment  of  Glanvill's  writ  was  an  easy  matter,  and  not 
open  to  objection  as  a  foreign  (Roman)  innovation.  Wc  now 
quote  Glanvill's  writ  in  full. 

The  following  is  his  writ  applicable  to  a  case  of  disseisin 
of  pasture  lands  :  "Rex  vicecomiti  salutem.  Questus  est  mihi 
N.  quod  R.  injustc  ct  sincjiidicio  disscishnt  eum  de  communi 
pastura  sua  in  ilia  villa  qucX  pertinet  ad  liberum  tenemcntum 
suum  in  eadem  villa  post  ultimam  meam  transfretationem  in 
Normanniam.  Et  ideo  prcecipio  tibi,  quod  si  pr^efatus  N. 
fecerit  te  securum  de  clamore  suo  prosequendo,  tunc  facias 
duodecim  liberos  et  legales  homines  de  visineto  vidcre  pas- 
turam  illam  et  tenementum  et  nomina  eorum  imbreviari  facias 
et  summone  illos  per  bonos  summonitores  quod  tunc  sint 
coram  me  vel  justiciis  meis  parati  inde  facere  recognitionem."  ^ 

It  will  be  seen,  as  we  have  previously  stated,  that  Glanvill's 
writ  makes  use  of  all  the  technical  language  of  the  writs  above 
quoted,  except  the  nisi  feceris  clause;  which  would  of  course 
be  inapplicable  to  process  of  the  King's  Court.^  If  the  writ 
had  stopped  with  the  first  sentence,  it  would  have  been  sub- 
stantially and  technically  like  the  manorial  writs,  though 
expressed  with  more  precision  ;  but  what  follows,  apart  from 
the  order  of  a  recognition,  is  nothing  more  than  is  contained 
in  other  writs  issuing  for  the  trial  of  causes  in  the  King's 
Court.  Nothing  therefore  has  been  added  to  the  manorial 
writs,  or  rather  to  the  writs  presumed  to  exist  and  to  furnish 
models  for  the  manorial  writs,  except  the  command  for  a 
recognition. 

•  Glanvill,  lib.  13,  c.  37. 

*  A  nisi  fecerit  clause  occurred  in  the  writ  of  right  issuing  from  the  King's 
Court,  but  that  had  reference  to  another  matter. — Glanvill,  lib.  i,  c,  5. 


iS4  HISTORY   OF   PROCEDURE. 

It  could  probably  be  shown  without  much  difficulty  that 
the  principle  of  each  of  the  recognitions  of  Glanvill  had  been 
in  use  in  England  ever  since  the  Conquest.     Domesday  was 
itself  a  great  inquisition  ;  and  it  contains  many  cases  which 
were  litigated  apparently  under  the   new  procedure.     There 
can  be  little  doubt  that  the  variety  of  causes  thus  determined 
in  the  taking  of  the  survey  was  sufhcicnt  to  furnish  examples 
of  the  principle  of  all  the  recognitions  of  the  twelfth  century. 
The  almost  uniform  inquiry  put  to  the  community  as  to  a  dis- 
puted claim  to  property  in  Domesday  was,  How  stood  the 
case  "tempore  regis  Edwardi } "  ;  just  as  in  the  time  of  Henry 
the  Second  the  question  put  to  the  recognitors  in  most  cases 
was,  How  stood  the  case  in  the  lifetime  of  A.,  or  in  the  time  of 
Henry  the  First,  or  before  the  king's  last  voyage  to  Normandy } 
Inquisitions  and  recognitions  in  a  great  variety  of  cases 
continued  throughout  the  reigns  of  the  Conqueror's  sons  and 
of  his  grandson,  as  well  as  of  the  reign  of  Henry  the  Second. 
The  following  writs,   not   before   quoted,   may   be   specially 
noticed  : 

In  the  year  1094,  William  Rufus  to  the  sheriff  of  Kent : 
"Fac  recognosci  per  homines  hundredi  deM.quas  consuetudines 
abbas  Sancti  Augustini  habere  dc^lfct  in  villa  de  N.,  et  quas 
dim  habuit.  Et  tales  fac  ci  habere  sine  mora  et  nominatim 
de  isto  auxilio,  sicut  olim  habuit." ^ 

It  will  be  noticed  of  this  last  writ  that  the  inquiry 
directed  to  be  made  relates  to  the  customs  which  the  abbot 
of  St.  Augustine  ou£-/ii  to  have  in  N.  The  case  of  The  Monks 
of  St.  Stephen  v.  The  King's  Tenants^  is  of  the  same  import. 
A  writ  of  Henry  the  First,  perhaps  anuo  1124,  in  like  manner 
directs  R.  B.  "inquirere  per  legales  homines  de  O.  quod 
habere  dcbcat  [abbas  Vincentius]  curiam  suam."->  A  writ  of 
Geoffrey,  earl  of  Essex,  contains  the  following  direction  : 
"  Fac  recognosci  per  vicinum  et  probos  homines  illius  pro- 
vinciiu,  si  quinquc  acra;  terra;  quas  W.  L.  tenet  et  illos  inde 

'       '  riacitn  Antr.  Norm.  66.  -  lb.  II9-  '  H^-  I2I. 


THE   WRIT   PROCESS.  185 

dissalsivit;    quas    illi    canonici    calumniant,    sijit   de    eorum 
tenuera  ;  et  si  recognitum  fuerit,  fac  inde  eos  saisiri."' 

Not  a  few  of  the  records  of  Domesday  arc  of  a  similar 
nature  to  the  writs  c|uotcd.  Thus,  in  the  case  of  a  claim  of 
Ralph  Pagenel  against  the  church  of  St.  Peter  of  York  to  six 
oxgangs  of  land  in  M.,  "homines  qui  juraverunt  dicunt  esse 
Sancti  Petri. "2  Another  case  is  still  more  definite.  "  Socam 
quam  clamat  G.  T.  in  Birland,  dicunt  esse  dcbcrc  episcopi 
Dunelmensis  in  Houedon."-^  In  another  disputed  claim,  the 
men  of  the  hundred  "nesciunt  quis  eorum  habere  dcbeatT'^ 
Again,  "  sex  bovatas  terr.ne  in  Rudctorp  quas  clamat  archi- 
episcopus  testantur  [homines  de  hundredo]  Gisleberti  Tison 
esse  dcbcrer^  In  another  case  the  men  swore  that  certain 
land  in  dispute  "  regis  esse  dcbcrc."^  In  another  case  "homines 
de  treding  dicunt  quod  non  debet  habere  (R.  de  B.)  nisi  socam 
in  C."7  In  another  "affirmant  homines  de  treding  quod 
archiepiscopus  yV^/r  debet  \\3.her a  hanc  socam."8  In  another 
"wapentac  portat  WidonT  testimonium  quod /«rt'  ejus  sunt 
tres  carucatc-e  terras."  9  But  whether  these  findings  may  not 
have  gone  beyond  the  question  actually  submitted,  as  might 
be  the  result  in  any  clear  case,  it  is  impossible  to  say.  The 
questions  have  not  been  preserved.  1° 

The  language  of  the  wa'its  last  quoted,  in  its  natural  and 
probably  true  import,  requires  or  permits  a  determination  of  the 
present  right  to  the  subject  of  dispute,  and  not  merely  the 
seisin.  No  distinct,  simple  question  of  fact  is  put ;  and  it  could 
not  surpass  the  terms  of  the  writ  to  submit  the  question  of 
property.  Writs  having  this  kind  of  language  were  a  clear 
precedent  for  the  Magna  Assisa,  the  reform  of  Henry  the 
Second  by  which  the  tenant  in  a  writ  of  right  or  in  a  praecipe 
quod  reddat  was  enabled  to  escape  the  duel,  and  put  himself 
upon  a  recognition  as  to  "  the  greater  right "  to  the  property  ; 

'  Placita  Ang.-Xorm.  160.  =  lb.  47.  3  lb.  48.  4  lb.  50. 

s  Ibid.  «  lb.  51.  7  lb.  55.  8  lb,  58.  '  lb.  60. 

'°  As  to  questions  of  right  of  property  under  this  and  the  earlier  Germanic 
procedure  of  the  Continent,  see  Brunner,  Schwurg.  47,  122,  176, 


i86  HISTORY   OF   PROCEDURE. 

only  that  these  writs  went  further  than  the  Magna  Assisa  in 
that  they  were  given  to  the  plaintiff,  while  that  was  ordinarily 
available  only  to  the  defendant.  It  was  probably  considered 
impracticable  in  those  times  to  make  a  settled  policy  of  an 
occasional  proceeding,  such  as  that  evidenced  by  the  foregoing 
writs.  The  duel  was  now  too  firmly  rooted  to  be  struck  away 
at  a  blow. 

Except  as  touching  a  sentiment  of  national  feeling  in 
an  Englishman,  it  is  of  no  special  importance  whether  the 
recognitions  of  Glanvill  were  in  use  a  short  time  in  Normandy 
before  they  were  introduced  in  their  settled  form  in  England 
or  not.  They  were  at  all  events,  it  is  conceived,  a  develop- 
ment from  common  Norman  and  English  materials.  But  if 
we  would  arrive  at  a  correct  conception  of  the  amount  of 
legal  progress  made  in  the  twelfth  century,  a  question  arises, 
relating  to  the  adoption  of  the  recognitions  in  England,  of 
great  importance ;  to  wit,  the  significance  of  the  step  as  to  the 
right  to  have  process  from  the  King's  Court. 

The  only  point  of  importance  made  in  the  argument  for 
the  priority  of  Normandy  in  respect  of  the  recognitions  (not 
of  course  to  prove  that  priority  i)  is  that  they  were  invented, 
or  rather  fashioned,  by  Henry  the  Second  before  he  had 
ascended  the  throne  of  England,  for  the  purpose  of  giving 
his  people  in  Normandy  the  use  as  matter  of  right  of  what 
had  theretofore  been  mere  matter  of  grace.^ 

That  this  view  of  the  object  of  the  settlement  of  the  form 
of  the  recognitions  cannot  be  sustained,  or  that,  at  all  events, 
it  failed  of  accomplishment,  is,  in  our  opinion,  clear,  for  the 

'  The  priority  of  Normandy  as  to  the  principle  of  the  recognitions  is  questioned 
by  no  one  ;  whether  the  particular  fixed  recognitions  of  Glanvill  were  first  put 
into  form  and  use  in  Normandy  is  another  question.  But  the  question  is  of  little 
importance.  Whether  first  put  into  final  shape  in  Normandy  or  in  England,  it  is 
apprehended  that  we  have  shown  that  they  were  the  result  of  a  gradual  develop- 
ment, and  not  the  creation  of  specific  reform.  The  point  now  to  be  made, 
however,  is  that  these  recognitions  were  not  put  into  set  form  for  the  purpose  of 
making  justice  (so  far)  free  and  equal;  that  they  were  no  more  to  be  had  as  matter 
of  right  now  than  before. 

^  Brunner,  Schwurg.  303,  304. 


THE   WRIT   PROCESS.  187 

following  reason.  The  fees  paid  for  having  recognitions  were 
of  widely  varying  amounts.  There  appears  to  have  been 
nothing  like  uniformity  in  regard  to  them;  and  the  sums 
paid,  as  reported  in  the  Pipe  Rolls,  are  generally,  if  not 
always,  high.  They  seldom  fall  below  ten  shillings  (a  very 
large  sum,  surely,  in  those  times),  and  sometimes  are  as  high 
as  sixty  pounds,  certainly  an  enormous  price  for  having  that 
form  of  justice  which  was  to  be  had  as  matter  of  right.  The 
more  common  fees  in  Normandy  ranged  from  twenty  to  forty 
shillings.! 

Now  this  variation  applied  to  the  familiar  recognitions  of 
Glanvill.  No  distinction  is  made  in  favour  of  the  process 
supposed  to  have  been  fashioned  in  the  interest  of  the  people 
and  to  be  had  as  matter  of  right.  There  is  another  fact  that, 
in  this  connection,  is  not  without  some  significance.  The 
writers  of  the  thirteenth  century  state  that  the  recognitions 
were  introduced  in  the  interest  of  the  poor  and  feeble,  espe- 
cially for  widows  and  orphans,  against  the  rich  and  powerful.^ 
But,  aside  from  the  fact  that  even  the  lower  fees  of  the  Ex- 
chequer Rolls  were  very  high,  there  are  instances  where  the 
heaviest  fees  are  paid  by  the  very  class  to  be  specially  pro- 
tected. Thus  there  are  several  entries  in  the  Norman  Rolls 
for  the  year  1 180,  where  widows  paid  high  sums  "  pro  habenda 
recognitione  de  dote."  ^  In  one  case  the  sum  of  two  marks 
of  silver  4  was  paid  ;  while  in  another  case  the  great  price  of 
sixty  pounds  was  exacted. ^ 

The  same  irregularity  in  the  price  of  writs  prevailed  in 
England  until  well  on  in  the  thirteenth  century,  at  least.  The 
following  are  examples  of  sums  paid  for  having  inquisitions 

'  See  the  examples  given  by  Brunner,  Schwurg.  307.  These  were  the  fees 
accounted  for  at  the  Exchequer  by  the  sheriffs.  It  may  be  that  smaller  fees  were 
paid  directly  to  the  king  and  not  accounted  for  in  the _^scus ;  but  that  would  not 
affect  the  view  taken  in  the  text. 

-  See  also  Glanvill,  lib.  2,  c.  7,  as  to  the  Magna  Assisa. 

■'  In  England  the  process  in  cases  of  dower  was  the  writ  of  right. ^Glanvill, 
lib.  6,  cc.  4,  5  ;  ante,  p.  5 

*  26s.  8d.  s  Brunner,  Schwurg.  308. 


i88  HISTORY   OF   PROCEDURE. 

or  recognitions  :  Walter,  filius  A.,  pays  five  marks  "  pro  recog- 
nitione  comitatus  habenda  de  terra  de  R."'     William,  filius  S., 
owes  ten  marks  "pro  rccognitione  quam  habuit  de  terra  deT."^ 
William,  filius  U.,  owes  one  hundred  shillings  "  pro  habenda 
recognitione  de  maritagio  matris  suae."^     Mauricius  de  W. 
owes  three  marks  "  pro  habenda  recognitione  de  i.  carucata 
terra;  in  H."4     William  de  H.  pays  five  marks  "ut  inquiratur 
per  legales  mulieres  si  Emma  de  S.,  quae  dicitur  peperisse, 
haberet  puerum  annon."^     Henry  de  M.  owes  forty  shillings 
"pro  habenda   recognitione  de  morte  W.  fratris,  de   ii.  jugis 
terra;."*^     Hugh,  filius  R.,  owes  one  mark  "pro  recognitione  i. 
masagii  in  civitate  L."7     William   de   L.  pays  fifteen  marks 
"pro  habenda  recognitione  de  terra  de  B."^     Robert  de  H. 
pays  thirty-two  pounds  four  shillings  and   eight  pence  "  ut 
habeat  assisam  de  morte  W.  fratris  sui  de  feodo  ii.  militum  et 
dimidii  in  S."9     Humphrey  B.  pays  forty  shillings  "pro  recog- 
nitione de  feodo  dimidii  militis."io     Henry  de  K.  and  his  wife 
pay  forty  shillings  "  pro  habenda  Magna  Assisa  de  i.  hida 
terras  in  C.""     Henry,  filius  A.,  owes  ten  "  fugatores  pro  re- 
cognitione feodi  i.  militis."i2    William  W.  pays  four  pounds  six 
shillings  "  pro  habenda  recognitione  de  visineto  si  appellatus 
fuit  per  A.  necne."'-^     William  O.  owes  one  hundred  shillings 
"  ut  inquiratur  si  fuit  cum  comite  Johanne  contra  regem." '^ 
Robert  de  E.  pays  one  hundred  shillings  "ut  inquiratur  utrum 
R.  C.  et  W.  et  H.  appellent  eum  de  roberia  et  latrocinio  per 
invidiam  vel  atiam,  annon."i5     Henry  de  B.  owes  ten  marks 
"pro  habendo  brcvi   de  morte  antecessoris."i6     Walter  and 
John  T.,  his  son, owe  ten  marks  "pro  habenda  inquisitione  per 
sacramentum  legalium  hominum  burgi  de  N.  si  domus  plum- 
bata   in   N.   fuerit  jus  Juliana;  matris  ipsius  Johannis,  quae 
mortua  est,  et  cum  ea  data  in  maritagio  pra^dicto  Waltero."i7 
William  de  S.  owes  ten  "  bisantia  pro  habenda  recognitione  de 

'  Placita  Ang.-Norni.  271.  -  lb.  273.  ^  lb.  274.  ■*  lb.  276. 

5  Ibid.  ^  Ibid.  7  Madox,  Hist.  Exch.  c.  12,  §  2  ;  fol.  ed.  p.  297. 

^  Ibid.         9  Ibid.         "  lb.  298.         "  Ibid.         '=  Ibid.         "3  Ibid.        '••  Ibid. 
'5  Ibid.     This  suggests  the  later  -writ  de  odio  ct  atia.  ''^  Ibid.  '''  lb.  299. 


THE    WRIT   PROCESS.  189 

dimidia  virgata  ternu  in  W."  i  Alice  dc  B.  and  others  owe  ten 
marks  "  pro  habenda  Magna  Assisa  .  .  .  .  de  c.  acris  terr?e 
de  gavelkindc  in  B."^  Galfridus  M.  owes  thirty  marks  "pro 
habenda  recognitione  de  terra  de  C."-^  John  de  M.  A.  owes 
ten  marks  "  pro  habenda  inquisitione  si  ccclesia  de  L.  sit  amota 
a  feodo  ipsius  ....  injuste  et  sine  judicio,"'^ — the  writ  of 
novel  disseisin.  Earl  Patricius  pays  forty  marks  and  four 
palfreys  "pro  habenda  recognitione  ....  si  K.  avunculus 
....  patris  comitis  Patricii  fuit  saisitus  in  dominico  suo  sicut 
de  feodo  de  villa  de  B."5  The  abbot  of  St.  Edmund  owes 
fifty  marks  "pro  habenda  inquisitione  ....  utrum  mer- 
catum  quod  monachi  de  E.  de  novo  habent  ....  sit  ad 
ocumentum  ....  Sancti  Edmundi  necne."^ 

These  are  some  of  the  cases  between  the  seventeenth  year  of 
Henry  the  Second  (1170)  and  the  fourth  year  of  John  (1203). 
Many  other  cases  of  the  purchase  of  writs  at  the  like  irregular 
rates  could  be  added  as  enforcing  the  meaning  of  the  clause  of 
Magna  Charta  concerning  the  sale  and  denial  of  justice.  It  is 
worth  notice  that  if  it  be  true,  as  is  generally  believed,  that  the 
knight's  fee  had  a  fixed  valuation  at  this  time — it  had  not  a 
fixed  acreage — there  is  convincing  evidence  in  the  examples 
above  given  that  the  sum  to  be  paid  for  a  real  property  writ 
was  not  dependent  upon  the  value  of  the  land  in  litigation. 
Thus,  Robert  de  H.  pays  thirty-two  pounds  four  shillings  and 
eight  pence  for  an  assise  of  mort  d'ancestor  concerning  two- 
and-a-half  knights'  fees,  while  Humphrey  B.  pays  but  forty 
shillings  for  a  recognition  concerning  half  a  knight's  fee. 
Henry  de  K.  pays  the  same  amount  for  having  the  Grand 
Assise  concerning  a  hide  (one  hundred  acres)  of  land. 

If,  however,  it  be  said  that  the  price  of  the  writ  varied  with 
the  means  of  the  party  together  with  the  amount  involved  7  in 
the  particular  litigation,  the  answer  is,  that  the  new  regulation 
then  amounted  to  nothing  ;  for  this  was  always  true,  before  as 

'  Madox,  Hist,  Exch.  supra.  ~  Ibid.  ^  Ibid.  t  lb.  300. 

5  Ibid.  ^  lb.  301.  7  See  Brunner,  Scliwurg.  30S. 


I90  HISTORY   OF   PROCEDURE. 

well  as  after  the  reign  of  Henry  the  Second.  All  that  was  ever 
necessary  to  obtain  an  inquisition  or  a  recognition  was  to  pay 
enough  to  satisfy  the  king's  demands.  There  was  little 
restraint  upon  his  will  in  such  matters,  so  far  as  history 
indicates.  Besides,  no  great  progress  in  the  reform  of  the 
law  in  this  respect  was  made  until  the  matter  of  having 
justice  ceased  to  be  the  subject  of  a  price,  even  though  the 
price  were  proportioned  to  the  sum  involved  and  the  means 
and  merits!  of  the  plaintiff  The  idea  that  litigants  were  to 
be  taxed  as  such,  and  that  too  without  uniformity,  for  pur- 
poses of  general  revenue,  and  not  merely  to  the  extent  of 
the  cost  of  the  clerical  and  ministerial  work  2  required  in  the 
course  of  an  action,  was  never  abandoned  or  relaxed  in  the 
twelfth  century,  even  if  the  justice  of  it  was  questioned. 

It  was  not  Henry  the  Second,  in  the  middle  of  the  twelfth 
century,  much  less  the  youth  Henry,  Duke  of  Normandy,  but 
Stephen  Langton,  more  than  sixty  years  afterwards,  at  the 
head  of  the  clergy,  baronage,  and  people  of  England,  who 
struck  the  effectual  blow  at  the  vicious  practice  (prerogative  3) 
of  selling  justice.  "Nulli  vendemns,  nulli  negabimus  aut 
differemus  rectum  aut  justiciam" — the  most  familiar  passage 
of  Magna  Charta  —  has  an  unmistakable  meaning.^  The 
practice,  introduced  by  the  Conqueror,  of  setting  a  price  upon 
the  dispensation  of  justice  in  the  new  forms  continued  without 
intermission  until  a  power  had  arisen  strong  enough  to  assert 
its  right  to  stamp  it  out.  No  successor  of  the  Conqueror 
ever  willingly  relinquished  it. 

It  is  highly  probable,  indeed  it  is  almost  certain,  as  we 

'  Comp.  Dialogue  of  the  Exch.  lib.  2,  c.  23  ;  Stubbs,  Sel.  Cli.  243  (2d  ed.). 

=  It  is  more  than  doubtful  if  other  costs  of  the  judiciary  should  be  put  upon 
litigants.  The  judiciary  is  part  of  the  general  government  administering  both  the 
civil  and  the  criminal  law  in  the  interest  of  the  State,  as  well  as  of  litigants. 

3  King  John  was  right  in  a  strictly  legal  point  of  view.  He  was  only  defending 
a  prerogative  as  old  as  the  Conquest.  But  the  day  of  such  things  was  now  well- 
nigh  past. 

-t  Madox  has  also  enforced  this  view  in  the  last  section  of  the  twelfth  chapter 
of  his  History  of  the  Exchequer  (p.  314,  fol.  ed.),  as  a  result  of  the  teaching  of  the 
facts  presented  in  that  chapter. 


THE    WRIT   PROCESS.  191 

have  already  seen,  that  some  special  regulation  of  the  form  of 
the  writs  used  for  recognitions  was  made  in  the  reign  of 
Henry  the  Second,  We  have  already  ventured  the  suggestion 
that  an  admiration  for  the  Roman  system  of  actions  may 
have  influenced  the  movement.  The  result,  even  if  accidental, 
certainly  was  to  fix  the  Roman  system  of  possessory  and 
petitory  actions  definitely  in  English  procedure.  The  regula- 
tion would  also  operate  in  the  interest  of  the  clerks  of  the 
courts,  as  a  saving  of  time  and  labour.  It  may  also  be 
believed,  perhaps,  that  the  advisers  of  the  king  hoped  to 
secure  a  more  just  and  equal  administration  of  justice  for 
litigants  ;  and  possibly  the  king  may  have  given  his  sanction 
to  this  purpose.  But  the  time  was  not  ripe  for  the  con- 
summation of  such  an  end.  The  king's  pecuniary  needs  were 
too  urgent  to  permit  an  abandonment  of  a  bad  policy  for  a 
sentiment ;  and  there  was  no  party  as  yet  strong  enough  to 
compel  him. 

The  history  of  several  classes  of  writs  has  now  been 
examined,  down  to  the  close  of  the  reign  of  Henry  the 
Second ;  the  result  of  which  can  scarcely  be  considered 
matter  of  doubt.  The  English  writs  in  question,  save,  perhaps, 
the  Magna  Assisa  writ,  were  not,  according  to  the  results  of 
this  investigation,  created  by  Glanvill  or  by  any  other  person, 
but  passed  through  a  natural  development  from  shapelessness 
and  lack  of  formal  language  to  something  like  definiteness  of 
framework,  prior  to  the  appointment  of  Glanvill  as  chief 
justiciar.  Probably  before  his  time,  and  under  the  adminis- 
tration of  his  predecessor,  Richard  de  Luci,  the  materials  at 
hand  were  from  time  to  time  subjected  to  general  revision, 
and  put  into  the  final  form  in  which  they  appear  in  Glanvill's 
book. 

It  must  be  conceded  that  few  clear  prototypes  of  the  other 
familiar  recognitions  of  Glanvill  (mort  d'anccstor,  de  ultima 
presentatione,  and  utrum  aliquis  sit  infra  etatem)  can  be 
found    among   known    English  materials ;    though   we   have 


192  HISTORY   OF   PROCEDURE. 

already  remarked  that  it  would  not  be  difficult  to  find 
sufficient  evidence  in  litigation  of  the  principle  involved  in 
tliem.  We  are  not  justified  in  supposing  that  the  progress 
indicated  in  the  adoption  of  them  was  anything  more  than 
had  been  the  case  in  respect  of  the  writ  of  novel  disseisin  ;  a 
regulation  of  process.  In  no  significant  sense  were  these  new 
writs  obtainable  as  matter  of  right ;  and  it  is  extremely  im- 
probable that  they  were  made  iino  ictii.  Violations  of  the 
rights  for  the  redress  of  which  they  were  used  had  not  arisen 
upon  a  sudden. 

Besides  the  formal  writs,  there  are,  it  will  be  remembered, ^ 
others,  belonging  to  the  third  class,  which  never  became  de 
cursu.  Some  of  these  were  of  a  kind  which  in  modern  times 
would  be  called  equitable.  The  most  numerous  were  what 
may  be  termed  writs  of  protection.  These  writs  are  interesting 
as  being  the  forerunners  of  modern  writs  of  injunction,  and 
perhaps  of  the  protective  process  generally  of  the  early 
Chancery. 

Among  the  examples,  the  Conqueror  issues  a  writ  (already 
quoted)  in  favour  of  the  church  of  Ely,  addressed  to  Lan- 
franc,  bishop  Geoffrey,  and  Robert,  earl  of  Mortain,  in  these 
words :  "  Defendite  ne  Remigius  episcopus  novas  consue- 
tudines  requirat  infra  insulam  de  Heli.  Nolo  enim  ut  ibi 
habeat  nisi  illud  quod  antecessor  ejus  habebat  tempore  regis 
Edwardi,"-  etc. 

The  following,  quoted  once  before,  is  by  the  same  king, 
being  addressed  to  the  abbot  of  Peterborough  :  "  Mando  tibi 
et  pra,'cipio  ut  permittas  abbatem  Sancti  Edmundi  sufficienter 
accipere  de  petra  ad  ecclesiam  suam  sicut  hactenus  habuit, 
et  non  amplius  sibi  impedimentum  facias  in  adducendis  petris 
ad  aquam,  quam  antea  fecisti."-' 

Rufus  issues  the  following  to  Walter,  filius  Oteri  :  "Mando 
tibi  et  pra^cipio  ut  abbati  Abbendonae  permittas  habere  suam 

'  Ante,  p.  152. 

^  Id.  p.  166  ;  riacita  Aug. -Norm.  27.     A  similar  writ  follows  on  p.  28, 

3  lb.  32  ;  ante,  p.  166. 


THE    WRIT   PROCESS.  193 

terrain  et  suam  silvam  omnino  libcram,  prajter  silvestram 
silvam,et  pascuam  suorum  hominum  habeat  in  praedicta  silva ;  et 
vide  ne  amplius  do  hac  silva  vel  terra  injuriam  abbati  facias."' 

Henry  the  First  to  W.  dc  Montefichet :  "  Pcrmitte  esse  in 
pace  terram  de  Langleia,  quam  regina  Mathilda,  uxor  mea, 
dedit  in  eleemosynam  Sancta^  Marite  de  A.,  sicut  melius 
umquam  fuit  in  pace  tempore  antecessoris  tui,"^  etc. 

The .  same  king  to  Ared,  his  falconer,  and  to  all  his 
foresters:  "Volo  et  prajcipio  ut  omnia  ligna  et  virgus,  quae 
fuerint  data,  vel  vendita  hominibus  abbatis  F.  de  A.  ad  opus 
suorum  operum,  sine  omni  impedimento  et  disturbatione 
possint  ea  conducere  in  pace  quocunque  voluerint."^ 

King  Stephen  to  his  sheriffs  and  bailiffs  and  the  townsmen 
of  Canterbury  :  "  Prohibeo  nc  aliquis  prohibeat  quin  homines 
civitatis  C.  et  provinciae  eant  et  veniant  ad  molendinum  quod 
concessi  et  dedi  Deo  et  ecclesise  Sancti  Augustini  infra 
civitatem  C,  cum  blado  suo  ad  molandum,"^  etc. 

Early  in  the  reign  of  Henry  the  Second,  Nigel^  bishop 
of  Ely,  "  et  baro  de  Scaccario  "  (as  he  describes  himself  in 
the  writ),  issues  the  following  to  the  sheriff  of  Gloucester : 
"  Prsecipimus  tibi  ut  facias  monachos  de  Bordesleia  tenere 
suam  terram  de  Cumbe  bene  et  in  pace,  sicut  saisiti  sunt 
per  breve  regis," ^  etc.  This  writ  is  of  interest  as  suggesting 
the  exercise  thus  early  by  the  Court  of  Exchequer  (of  which 
Nigel  was  the  chief  financial  member)  of  quasi  equity  powers. 
There  is  difficulty,  otherwise,  in  explaining  the  authority  of 
the  bishop  of  Ely  to  issue  a  mandate  to  a  sheriff  in  one  of  the 
western  counties.  Nigel  was  neither  chancellor  nor  chief 
justiciar ;  and  he  acts  expressly  as  a  member  of  the  Ex- 
chequer. We  shall  presently  see  another  clear  instance  in 
that  court,  somewhat  later  in  date. 

The  last  writ  to  be  noticed  is  the  following,  directed  by 
Henry  the  Second  to  Jordan  de  S.  :  "  Praecipio  quod  juste 
manuteneas  abbatem   et  monachos  G.  de  elemosina  mea  et 

'   Placita  Ang. -Norm.  64.  =  lb.  or.  3  Jb.  q6_ 

*  lb.  159.     See  also  166.  s  ib.  18S,  amio  1156.  ' 

O 


194  HISTORY   OF   PROCEDURE. 

antecessorum  meorum  dc  C.  (|uam  H.  rex,  avus  meus,  eis 
confirm[ab]at  carta  sua,  nee  pcrmittas  quod  aliquis  eis  injuriam 
faciat,  vel  contumeliam,"'  etc. 

This  class  of  writs  never  became  de  cursu ;  and  that 
accounts,  in  part  at  least,  for  the  fact  that  the  Court  of 
Chancery  subsequently  acquired  exclusive  jurisdiction  over 
such  remedies.  Had  the  writs  of  protection  become  de  cursu, 
the  Provisions  of  Oxford  (to  be  further  considered  hereafter) 
would  not  have  cut  down  the  jurisdiction  of  the  royal  courts 
in  this  particular. 

Equity  jurisdiction  in  the  modern  sense  being  considered 
as  resting  upon  the  idea  that  parties  owe  no  obedience  to  the 
specific  orders  of  a  common  law  court — that  is,  that  the 
common  law  courts  lack  the  power  of  coercing  obedience 
by  orders  in  personam- — there  is  evidence,  apart  from  that 
exhibited  in  the  foregoing  writs,  and  more  directly  to  the 
purpose,  of  the  exercise  of  equity  powers  by  the  superior 
courts  of  the  Norman  period. 

In  the  case  of  the  Prior  and  Convent  of  Abingdon  v. 
Thomas  de  Esseburn,^  the  Court  of  Exchequer,  by  Glanvill, 
having  given  judgment  in  favour  of  the  plaintiffs,  "  praecepit 
etiam  prcedicto  Thoma:;,  qui  praesens  erat,  ut  quoniam  rationes 
nostra2,4  sicut  per  nos  coram  eo  [Glanvill]  sufficienter  pro- 
batum  erat,  separator  sunt  a  rationibus  abbatis,  de  his  tantum 
quai  ad  cameram  abbatis  spectant,^  curam  haberet.  Ad  ea 
vero  qua;  ad  nos  spectant  manum  non  apponeret,  sed  plenum 
jus  et  potestatem,  tam  in  tenementis  nostris  quam  in  tenen- 
tibus,  nos  habere  permitteret.  Dicebat  enim  tota  curia  quod 
periculo  nostro  fierct,  si  quid  a  custodibus  regis  temptaretur, 
(^uod  abbatibus  licere  non  debet." 

'  Placita  Ang.-Norm.  250.  -  Langdell,  Summary  of  Equity  Pleading. 

3  Placita  Ang.-Norm.  234.  •*  The  writer  was  a  monk  of  Abingdon. 

5  The  abbot  had  deceased,  and  his  interest  in  the  monastery  had  been  taken 
into  the  king's  hand  by  Thomas ;  who,  however,  had  been  seeking  to  get  posses- 
sion also  of  the  entire  property  of  the  monastery.  The  suit  in  its  essence  was  a 
proceeding  for  an  injunction. 


THE    WRIT    PROCESS.  195 

This  was  in  the  year  1185.  Two  years  Latci:  the  case 
of  the  Monks  of  Canterbury  v.  Archbishop  Baldwin '  came 
before  Glanvill  at  Westminster,  whether  in  the  Exchequer 
or  in  the  King's  Court  does  not  appear.  In  this  case  the 
monks  of  Canterbury  had  obtained  a  mandate  from  the  pope, 
directing  three  abbots  to  restrain  the  archbishop  from  acts 
of  alleged  oppression.  Ikit  while  the  three  abbots  "  were  in 
deliberation  on  the  form  of  executing  the  pope's  mandate," 
the  archbishop  obtained  from  Glanvill  the  following  writ, 
addressed  to  one  of  them,  apparently  the  leader  in  the 
interests  of  the  monks :  "  Pra;cipio  tibi  ex  parte  domini 
regis 2  per  fidem  quam  ei  debes  et  per  sacramentum  quod  ei 
fecisti,  ut  nullo  modo  procedas  in  causa  qu^e  vertitur  inter 
monachos  C.  et  dominum  C.  archiepiscopum  donee  inde 
mecum  locutus  fueris." 

This  w^-it  may  contain  a  suggestion  of  the  familiar  writ 
of  prohibition  which  the  King's  Court  has  always  had  juris- 
diction to  use  over  courts  usurping  its  authority.  In  reality, 
however,  it  is  another  thing :  it  is  not  addressed  to  any  court, 
but  to  an  individual,  appointed  and  seeking  a  mode  to  execute 
process  on  behalf  of  a  court,  the  court  of  Rome. 

But  another  writ  follow^s  in  the  same  case,  of  which  the 
suggestion  mentioned  cannot  be  made.  This  is  also  issued 
by  Glanvill,  and  is  addressed  to  the  subprior  and  convent  of 
the  monastery  ;  that  is,  to  the  parties  complaining  of  the  acts 
of  the  archbishop.  It  is  as  follows  :  "  Prsecipio  vobis  ex  parte 
domini  regis  ne  aliquo  modo  utamini  contra  dominum  C. 
archiepiscopum  aliqua  perquisitione  quam  contra  eum  qucX^- 
sistis,  donee  inde  mecum  locuti  fueritis.  Et  tu  supprior 
absque  occasione  et  dilatione  sis  Londoniis  in  festo  Sancti 
Jacobi  cum  consilio  conventus  tui,  auditurus  et  facturus  quod 
tibi  dicetur  ex  parte  domini  regis,  et  ibi  tunc  tecum  habeas 

'  Placita  Ang.-Norm.  240. 

^  This  was  not  done  at  any  actual  instance  of  the  king,  for  he  was  then  in 
Normandy. 

O    2 


196  HISTORY   OF   PROCEDURE, 

perquisitiones  qu^e  perquisit?e  sunt  contra  dominum  C.  archie- 
piscopum."  I 

There  can  be  no  doubt  of  the  meaning  of  such  a  writ ;  and 
as  to  the  second  part  of  it,  addressed  immediately  to  the  sub- 
prior,  it  did  not  need  the  "sub-poena"  clause  of  the  later 
chancery  writ  to  make  obedience  compulsory.  Refusal  to 
obey  the  writ  would  be  contumacy,  the  last  offence,  almost, 
known  to  the  old  law.  Indeed,  the  contrast  between  the 
ancient  practice  of  the  courts,  back  to  the  earliest  times,  and 
the  modern  is  nowhere  so  sharply  drawn  as  in  this  matter  of 
requiring  specific  obedience  to  the  authority  of  the  courts. 
Whoever  refused  to  obey  final  summons  ev^en  was  in  contu- 
macy, and  liable  to  the  fate  of  the  "wolf's  head."  2  Obedience 
in  all  courts  was  the  consummate  requirement  of  the  law. 

We  have  now  proceeded  far  enough  with  the  investigation 
proposed  at  the  commencement  of  this  chapter  to  justify  the 
statement  of  some  conclusions ;  the  first  one  of  which  has 
already  been  anticipated  more  than  once. 

I.  Originally  the  writ  had  signified  nothing  in  respect  of 
the  form  of  action  in  a  particular  case,  or  rather,  it  had  no 
necessary  connection  with  the  formalism  of  the  actual  plaint 
or  count  (to  use  a  later  term),  further  than  that  it  ordinarily 
specified  the  nature  of  the  demand.  The  office  of  the  writ 
was  simply  to  set  on  foot  a  suit  under  supreme  authority  ; 
and  this  continued  to  be  the  case  until  perhaps  the  thirteenth 
century.  Few  of  the  writs  of  Glanvill  had  become  so  fully 
formulated  as  to  show  the  technical  language  of  the  count : 
that  was  for  the  most  part  a  matter  of  later  times,  involving 
another  advance  in  the  framework  of  the  writ  process.  We 
may  also  venture  to  affirm  again,  in  this  connection,  as  a 
reasonable  inference  from  what  has  been  seen  of  the  devious 
course  of  the  writs,  that  the  formalism  of  an  action  was  shown 

'  In  this  connection  the  writs  to  defendants,  quoted  mtte,  p.  152,  may  be 
referred  to  for  comparison. 

'  See  the  last  chapter  of  this  l)ook,  at  the  end. 


THE   WRIT   PROCESS.  197 

only  by  the  count,  and  not  (before  the  thirteenth  century)  by 
the  writ.  The  writ  advanced  at  last  to  the  count,  but  only 
by  slow  and  halting  steps.  The  English  forms  of  action  are 
older  than  the  oldest  formal  writs.  13ehind  the  obscuring  veil 
of  the  writ  process,  the  ancient  formalism  of  the  Folkmot, 
modified  somewhat  by  time,  somewhat  by  the  new  procedure, 
but  still  in  its  essential  integrity,  went  on  until  at  last  the 
old  plaint  had  faded  into  the  later  count. 

2.  Throughout  the  Norman  period  the  king's  prerogative 
to  issue  writs  at  will  was  unquestioned.  There  is  no  evidence 
that  the  adoption  of  the  writs  of  Glanvill  laid  any  restric- 
tion upon  the  king  in  this  particular.'  He  continued  to 
issue  writs  whenever  it  suited  his  pleasure  or  answered  his 
pecuniary  needs.  The  king  sanctioned  the  use  of  the  writs  of 
Glanvill ;  and  probably  his  justiciar  generally  felt  bound  to 
follow  them.  The  court  clerks  certainly  were  bound  to  do 
so.  Suitors  must  have  had  to  go  to  the  king  (or  possibly 
to  the  Council)  for  writs  adapted  to  special  and  peculiar 
cases.  This  must  have  been  the  case  from  the  time  when 
writs  assumed  the  state  of  settled  forms  of  action.  But  the 
fact  that  special  application  must  be  made  to  the  king,  or,  in 
his  absence,  to  the  justiciar,  for  special  writs  must  have  made 
such  applications  exceptional ;  and  actions  "  on  the  case,"  to 
borrow  a  modern  term,  could  not  at  this  time  have  played  a 
very  general  part  in  the  administration  of  justice. 

No  limitation,  however,  had  yet  been  placed  upon  the 
royal  prerogative ;  and  the  kings  of  England  continued  to 
issue  special  writs,  without  any  effectual  restraint,  until  after 
the  middle  of  the  thirteenth  century.  In  the  year  1258  the 
Provisions  of  Oxford  were  promulgated  ;  two  separate  clauses 

'  Compare  Glanvill,  lib.  i,  c.  5,  for  instance,  where  it  is  said  that  the  king,  if 
he  wish,  may  give  a  writ  to  a  party  seeking  a  trial  in  his  court.  So,  too,  the  king's 
charter  could  be  set  up  in  bar  of  a  recognition  (Glanvill,  lib.  13,  c.  Il),  which 
before  Magna  Charta  could  always  be  obtained  for  a  price.  Indeed  no  inquiry 
could  be  made  into  the  king's  charters  or  acts  even  in  the  time  of  Bracton, — 
Placita  Ang.-Norni.  28,  29;  Bracton,  34. 


198  HISTORY   OF   PROCEDURE. 

of  which  bound  the  chancellor  to  issue  no  more  writs  except 
writs  "  of  course  "  without  command  of  the  king  and  of  his 
Council  present  with  him.i  This,  with  the  growing  indepen- 
dence of  the  judiciary  on  the  one  hand,  and  the  settlement 
of  legal  process  on  the  other,  terminated  the  right  to  issue 
special  writs,  and  at  last  fixed  the  common  writs  in  unchange- 
able form  ;  most  of  which  had  by  this  time  become  developed 
into  the  final  form  in  which  for  six  centuries  they  were  treated 
as  precedents  of  declaration. 

The  result  was  that  within  thirty  years  it  became  necessary 
to  pass  a  statute  to  put  the  procedure  of  the  courts  upon  its 
ancient  footing.  The  Statute  of  Westminster  II.  c.  24,  anno 
1285,  authorising  actions  on  the  case,  was  only  an  attempt  to 
return  to  what  had  existed  throughout  English  history  until 
writs  of  course,  supplemented  by  the  restrictions  contained  in 
the  Provisions  of  Oxford,  had  tied  the  hands  of  the  courts. 
In  so  far  as  the  attempt  was  a  failure,  the   result  was  the 

'  "  Ceo  jura  le  chanceler  Engletere.  Ke  il  ne  enselera  nul  bref  fors  bref  de  curs 
sang  le  commandement  le  rei  et  de  sun  conseil  ke  serra  present." — Ann.  Monast. 
448.  "  E  ke  il  [le  chanceler]  ne  enseler  hors  de  curs  par  la  sule  volunte  del  rei ; 
mes  le  face  par  le  cunseil  ke  serra  entur  le  rei." — lb.  451. 

That  these  clauses  were  aimed,  in  part  at  least,  if  not  mainly,  at  judicial 
process,  seems  clear  both  from  the  Provisions  themselves,  especially  in  connection 
with  the  Provisions  of  Westminster  (made  in  pursuance  of  the  former),  and  the 
circumstances  which  called  them  forth.  The  Oxford  articles  are  largely  occupied 
with  regulations  for  the  administration  of  justice  in  the  courts ;  while  those  of 
Westminster  are  given  up  to  minute  and  extensive  ameliorations  of  procedure.  To 
understand  the  restriction  upon  sealing  writs  out  of  course  to  refer  to  judicial 
process  is  in  keeping  with  the  tenor  of  the  Provisions.  The  strongest  evidence  as 
to  the  purpose  of  the  clauses  in  question,  however,  lies  in  the  circumstances  under 
which  the  Provisions  of  Oxford  were  promulgated.  The  Provisions  point  in  terms 
to  Magna  Charta,  which  had  failed  of  its  object.  Justice  was  still  sold  and  denied 
by  the  king  at  his  pleasure.'  The  courts  must  now  not  only  be  put  into  the  hands 
of  men  representing  the  baronage  and  commonalty,  but  tlie  exclusive  right  of  such 
to  settle  the  disputes  brought  to  litigation  must  at  length  be  asserted  and  upheld. 
This  could  not  be  effectually  done  if  the  king  retained  and  continued  to  exercise 
his  ancient  prerogative  of  issuing  writs  at  will.  Hence  the  clauses  abridging  his 
prerogative.  Litigation  was  to  be  forced  into  the  courts,  where  justice  was  not 
sold  or  denied  for  money. 

I  "Null!  vcndemus,  null!  negabimus  ....  rectum  aut  juhticiam,"  had  the  present  king 
(Henry  tlie  Third)  as  well  as  his  fatlier  said. 


THE   WRIT   PROCESS.  igg 

natural  consequence  of  the  state  of  things  following  upon  the 
use  of  the  writ  process,  and  finally  established  by  the  Provisions. 

Such  was  the  history  of  the  development  of  the  writ 
process  in  England  until  the  end  of  the  twelfth  century  ;  ^  and 
it  may  now  be  inquired  what  purpose  had  been  served  by  its 
introduction  and  use.  Prior  to  thi  Conquest,  writs  were 
almost  unknown  in  England  as  judicial  process.  No  use  for 
them  had  been  found,  except  for  authorising  the  trial  of  a 
cause  before  some  special  delegate  not  possessed  of  the 
requisite  jurisdiction.  It  served  this  purpose  afterwards  use- 
fully, upon  a  more  extensive  scale  ;  but  it  was  now  the 
embodiment  of  the  principle  that  the  king  personally  was  the 
fountain  of  justice.  It  was,  indeed,  the  symbol  and  expression 
of  arbitrary  power.  It  expressed  the  king's  sole  right  over  the 
dispensation  of  justice,  a  right  which  the  king  exercised  on 
his  own  terms  until  Magna  Charta  was  extorted  from  John. 
The  sale  and  denial  of  justice  for  money  were  chief  features 
in  the  use  of  the  writ  ;  and  the  very  term  by  which  at  the 
present  day  process  is  said  to  be  obtained — the  purchasing 
of  a  writ — points  to  one  of  the  main  purposes  to  which,  in 
England,  it  was  directed  from  the  beginning.  The  writ 
certainly  was  no  part  of  what  by  some  has  been  called  "the 
consummate  wisdom  "  of  the  common  law. 

This,  however,  is  but  a  half  truth  ;  and  to  stop  here  would 
be  to  leave  a  false  view  of  the  uses  of  the  writ.  The  most 
salutary  result  accomplished  in  the  history  of  English  juris- 
prudence was  the  establishment  of  the  (nearly)  universal 
jurisdiction  of  the  King's  Court,  including  both  of  its  branches, 
the  central  court  about  the  king's  person  (with  the  Exchequer 
and  the  Council)  and  the  Eyre.  The  appearance  of  the 
King's  Court,  with  its  unwillingness  to  be  cramped  by  the 
limited  jurisdiction  of  the  old  Theningmannagemot  and  of 
the  Confessor's  Aula  Regis,  was,  indeed,  as  we  have  seen  in  a 
previous  chapter,^  a  disturbing  element ;  but  the  disturbance 

'  And  in  one  particular  for  nearly  a  century  later.  -  Ante,  p.  75. 


260  HISTORY   OF   PROCEDURE. 

affected  in  the  main  only  the  local  franchises,  whose  exclusive 
privileges  were  fatal  to  the  existence  of  national  power.  The 
nation,  and  in  the  end  certainly  the  people  through  the 
counties,  were  vastly  benefited  by  the  breaking  down  of  the 
exclusive  jurisdiction  of  the  manors.  Legislation  was  indeed 
necessary,  as  we  have  seen,'  to  open  the  franchises  to  the 
sheriffs  and  justiciars  itinerant;  but  how  far  the  King's  Court, 
by  means  of  the  writ  process,  was  able  to  accomplish  the 
result  has  been  pointed  out. 2  It  was  largely,  indeed  mainly, 
by  this  process  that  the  wholesome  jurisdiction  of  that  court 
was  built  up  and  established.  And  this  was  the  case  not  only 
as  against  the  franchises,  but  also  as  against  miscarriages  of 
justice  in  the  popular  courts  of  the  county  and  the  hundred.'^ 

'  Ante,  p.  loi.  -  Id.  pp.  77-79.  ^  Id.  pp.  79,  $^^  84. 


CHAPTER    V. 

DISTRAINT. 

The  distinction  which  prevails  in  the  English  law  between 
actions  of  contract  and  actions  of  tort  is,  from  an  historical 
point  of  view,  as  well  as  internally  considered,  clearly  marked. 
In  the  earliest  of  the  Germanic  codes,  the  Salic  law,  breaches 
of  contract  were  attended  with  a  substantive  right  of  distraint, 
while  torts  were  not ; '  and  this  distinction,  under  modifica- 
tions, has  continued  throughout  the  history  of  the  English 
law.  The  fact  of  the  existence  of  a  right  to  distrain  upon 
cattle  damage-feasant  has  no  bearing  against  the  correctness 
of  the  distinction  ;  which  right,  if  not  aJcin  to  the  notion — it 
did  not  spring  from  it  probably — that  a  thing,  whether  an 
animal,  a  slave,  or  an  inanimate  object,  which  had  done 
damage  to  a  man,  might  be  appropriated  by  him  in  compensa- 
tion, was  at  all  events  only  a  special  exception,  dictated  as 
well  by  good  sense  as  by  human  nature.     The  cattle  were 

'  In  Normandy  distraint  was  exercised  in  cases  ex  delicto  in  the  thirteenth  century. 
— Summa,  lib.  2,  c.  8,  in  7  Lud wig's  Reliquiae,  pp.  159  et  seq.  Whether  this  was 
as  a  substantive  proceeding  or  as  auxiliary  to  summons  does  not  clearly  appear. 
But  the  subject  there  begins  with  the  sentence  :  "Justiciatio  est  coactatio  super 
aliquem  facta  tit  juri  pareat  ex  commisso."  See  also  §§  5,  9,  pp.  160,  161. 
Glanvill  also  speaks  of  distraint  in  a  case  ex  delicto  (assault  by  a  tenant  upon  his 
lord),  but  the  distraint  appears  to  have  been  auxiliary,  upon  failure  of  summons. — 
Lib.  9,  c.  I,  §  8.  Criminal  distraint  is  of  course  another  thing.  As  to  civil  dis- 
traint generally,  com]).  \\it  pignoris  capio,  Gaius,  lib.  4,  cc.  26-29,  3^  5  Keller,  Der 
Rbmische  Civil  Process,  §  20. 


202  HISTORY   OF   PROCEDURE. 

upon  the  premises  of  the  injured  party,  and  ah-eady  in  his 
hand,  by  the  act  or  fault  of  the  owner ;  and  they  were  most 
naturally  detained  until  compensation  was  made  for  the 
damage  they  had  done.  Nothing  was  taken  out  of  the  hand 
of  another.  Exceptions  of  this  sort,  the  promptings  of  human 
nature,  are  to  be  looked  for  in  the  case  of  every  rule. 

This  substantive  right  of  distraint,  though  it  was  enforced 
by  leave  of  court,  as  will  be  seen,  was  an  entirely  different  thing 
from  auxiliary  distraint  following  upon  ineffectual  summons  to 
court.  Substantive  distraint  was,  like  foreign  attachment  at 
the  present  day,  a  distinctive  mode  of  suit,  corresponding  to, 
and  running  parallel  with,  the  institution  of  suit  by  summons. 
Auxiliary  distraint  was  a  secondary  matter,  resorted  to 
because  of  the  failure  of  summons.  Substantive  distraint 
was  designed  to  compel  speedy  payment  of  a  debt,  auxiliary 
distraint  to  compel  the  party  for  any  cause  to  come  into  court. 
By  the  one  mode  of  redress  a  creditor  obtained  immediate 
security  for  the  payment  of  his  demand  ;  while  the  other  was 
not  granted  until  after  the  third  or  fourth  disobedience  of 
summons.  But  there  was  no  determination  upon  the  rightful- 
ness of  the  demand  in  the  taking  of  a  distress,  though  all  the 
forms  of  the  law  of  distraint  may  have  been  properly  observed, 
any  more  than  there  is  in  a  modern  attachment  or  distress. 
The  legality  of  the  claim  could  afterwards  be  tested  by  the 
party  distrained  replevying  ;  the  result  of  which  would  be  to 
bring  the  matter  before  the  court  for  trial. 

There  is  no  greater  mistake,  it  is  apprehended,  than  to 
suppose  that  private  distraint  as  it  has  existed  in  modern 
times  in  England  and  in  America — -distraint  made  without 
judicial  permission — is  archaic,  as  having  been  transmitted  in 
its  present  form  from  the  period  of  supposed  early  Anglo-Saxon 
law.  The  time  perhaps  was,  when  non-judicial  distress  was 
exercised  among  the  Germanic  peoples  ;  but  that  time  was 
prehistoric,  and  is  only  matter  of  inference  from  the  course 
of  events  in  actual  history,  and  not  capable  of  proof.     But 


I 


DISTRAINT.  203 

whether  private  distress  once  prevailed  or  not,  it  is  certain 
that  from  the  time  when  the  Germanic  nations  first  appear  in 
legal  history  until  the  period  of  which  we  are  writing,  distraint 
between  freemen  of  the  same  gau,  hundred,  or  (later)  munici- 
pality! ^vas  lawful  only  when  effected  under  judicial  authority. 
In  the  earliest  of  the  German  codes  it  is  declared  that  if 
anyone  should  distrain  his  debtor  without  authority  of  a 
judge,  he  should  lose  his  debt,  though  he  had  acted  in 
ignorance  merely.- 

The  later  Germanic  codes  are  not  so  clear,  but  there  is  no 
instance,  so  far  as  the  writer  is  aware,  in  which  it  is  said  that 
distraint  can  be  made  without  license  of  court.  Whenever 
anything  is  said  upon  this  point,  there  is  always  a  prohibition 
of  proceeding  in  that  way  ;  and  some  of  the  prohibiting  edicts 
clearly  relate  to  substantive  distraint.  As  to  the  case  of 
auxiliary  distraint,  there  is  no  doubt  of  the  requirement  of 
judicial  authority  in  all  cases.  It  will  be  necessary  to  quote 
the  Continental  codes  upon  the  subject  of  substantive  distraint, 
since  the  English  law,  as  given  in  the  custumals,  is  meagre, 
and  probably  relates  only  to  auxiliary  distraint,  with  the 
exception  of  a  single  passage  in  the  Laws  of  Henry  the  First. 

In  the  Laws  of  the  Ostrogothic  kings,  we  find  the  following 
provisions :  We  deny  license  to  anyone  to  take  distress  at  his 
will  :  if  there  be  cause  for  it,  the  authority  for  doing  it  belongs 
to  the  judge. -5  If  a  creditor  take  by  force  from  his  debtor  pro- 
perty not  obligatas  to  him  (the  creditor),  he  must  restore  the 
same  within  a  year  under  a  fourfold  penalty  :  after  a  year  he 


'  Comp.  Customs  of  Newcastle-upon-Tyne,  temp.  Hen.  I.  "  Burgenses  possunt 
namiare  foris  habitantes  infra  suum  forum  et  extra,  et  infra  suam  domum  et  extra, 
et  infra  suum  burgum  et  extra,  sine  licentia  propositi,  nisi  comitia  teneantur  in 
burgo,  et  nisi  in  exercitu  sint  vel  custodia  castelli.  Super  Intrgensem  non  potest 
burgensis  namium  capere  sine  licentia  propositi."— Stubbs,  Sel.  Ch.  1 11  (2d  ed.). 

^  "  Si  quis  debitorem  suum  per  ignorantiam  sinejiidice  pignorare  prcesumpserit 
antequam  eum  nesti  canthechigio  [putting  him  under  the  ban],  et  debitorem  perdat, 
etinsuper  similiter  si  male  pignoraverit,"  etc. — Lex  Sal.  c.  74  ;  Ilessels  and  Kern, 
408. 

>  Edicta  Regum  Ostrogothorum,  c.  123  ;  i  Cane.  Leges  Barb.  12. 


204  HISTORY   OF   PROCEDURE. 

shall  pay  in  sinipluni.'^  According  to  the  Laws  of  the 
Lombards,  if  anyone  having  a  debtor  call  ("  appellet ")  him 
once,  twice,  and  thrice,  and  he  does  not  pay  the  debt,  or 
arrange  the  matter  ("composuerit "),  then  may  he  distrain  him 
in  his  property  such  as  it  is  lawful  to  distrain.  ^  If  anyone  has 
presumed  to  distrain  another  for  any  debt  or  caussa  before  he 
has  demanded  ("  pulsaverit ")  him  the  third  time,  "pignus, 
quod  ante  contestationefn  tulerit,  sibi  nonum  (vel  novum) 
reddat  in  potestate  domini  sui."^  If  anyone  take  away 
another's  mares  or  swine  in  the  name  of  distress  for  debt 
("  pignoris  nomine  ")  without  the  king's  order,  he  must  die  or 
pay  nine  hundred  shillings,  half  to  the  king,  half  to  him  from 
whom  he  took  \\\q.  pignus.^  If  anyone  has  distrained  tamed 
horses  or  oxen  or  cattle  of  the  yoke  without  the  king's  order, 
he  must  pay  ninefold. 5  The  next  chapter  but  one  is  of  interest, 
in  stating  the  procedure  in  a  particular  case.  If  any  freeman, 
who  is  a  debtor,  has  no  property  except  horses  or  oxen  tamed, 
or  cows  "junctorias,"  then  the  creditor  should  go  "ad  scul- 
dasium,"  ^  who  is  appointed  in  the  place,  and  state  that  he  has 
nothing  else  than  the  things  just  mentioned.  Then  the  "scul- 
dasius  "  takes  the  oxen  or  horses  and  puts  them  into  possession 
of  the  creditor  (to  remain)  so  long  as  he  (or  the  debtor })  acts 
justly.  If  the  "  sculdasius "  delay  to  do  this,  he  must  be 
amerced  in  the  king's  palace  in  twelve  shillings  ;  and  after 
justice  has  been  done,  let  i\\c pignus  be  restored. 7  If  anyone 
has  distrained  ("  pignoraverit  ")  another  before  the  time  ap- 
pointed for  payment,  and  the  fact  is  proved,  let  him  compound 
the  distress  ("pignus")  eightfold. §  We  are  willing  to  grant 
to  all  free  persons  that  no  public  judge  or  public  servant  shall 

'  Edicta  Regum  Osliogothoium,  c.  124;  i  Cane.  12. 

'  Leges  Langobardicce,  c.  249  ;  I  Cane.  84. 

3  lb.  c.  250 ;  I  Cane.  84.  There  is  some  variance  in  the  MSS.  as  to  tlie  clause 
quoted,  but  nothing  to  affect  it  as  to  the  point  under  consideration. 

-•  lb.  c.  253;  I  Cane.  84.  s  lb.  c.  254;  i  Cane.  85. 

^  The  "  sculdasius  "  appears  to  have  been  an  inferior  magistrate  ;  "pedaneus 
judex." — Du  Cange. 

^  lb.  256;  I  Cane.  85.  ®  Liutpr.  lib.  5,  c.  12  ;   i  Cane.  in. 


DISTRAINT.  205 

distrain  them  contrary  to  law,  to  wit,  in  cattle.  Nor  are  they 
to  be  forced  ("cogantur,"  i.e.  it  seems,  distrained  in  property) 
to  come  to  pleas  except  thrice  a  year,  etc.'' 

In  the  Laws  of  the  Bavarians  it  is  decreed  that  no  one 
may  distrain  ("pignorare  ")  without  leave  of  the  judge;  and 
then  follows  a  decree  that  contumacious  persons  who  refused 
to  come  to  court  and  do  right  might  be  distrained  ("distrin- 
gatur":  the  change  of  words  should  be  noticed.  "Pignorare" 
is  dropped  when  the  distraint  is  not  for  debt). 2  If  anyone  has 
distrained  ("pignoraverit ")  another  contrary  to  law,  without 
the  duke's  leave,  he  must  return  the  pijf/n/s  without  injury. 3 

That  distraint  of  property  was  a  legal  mode  of  coercion  in 
England  prior  to  and  during  the  Norman  period  is  directly 
shown  by  the  custumals  ;  but  whether  substantive  distraint 
was  in  use  the  custumals  prior  to  the  twelfth  century  afford 
no  certain  evidence.  The  only  pertinent  mention  of  civil 
distraint  of  property  prior  to  the  Conquest  is  in  the  Laws 
of  Cnut  ;  and  the  provision  there  pretty  clearly  relates  to 
auxiliary  process.  "  Let  no  man  take  any  distress,  either  in 
the  Shire  or  out  of  the  Shire  [gemot],  before  he  has  thrice 
demanded  his  right  in  the  Hundred  [mot].  If  at  the  third 
time  he  have  no  justice,  then  let  him  go  at  the  fourth  time  to 
the  Shiregemot ;  and  let  the  Shire  appoint  him  a  fourth  time. 
If  that  then  fail,  let  him  take  leave,  either  from  hence  or 
thence  [that  is,  anywhere]  that  he  may  seize  his  own."  4  This 
provision  reappears  in  the  same  language  in  the  so-called 
Laws  of  William  the  Conqueror.^ 

'  Lothar.  c.  74  ;  I  Cane.  205. 

-  Lex  Bajuvariorum,  tit.  I2,  c.  I  ;  2  Cane.  380.  As  to  the  word  "distringere," 
see  2  Cane.  73,  74,  160,  184,  195,  261  ;  3  Cane.  275,  334;  4  Cane.  lor,  476. 

3  lb.  e.  3.  See  also  ce.  4,  5  ;  2  Cane.  381.  See  further  3  Cane.  69  ;  4  Cane, 
tg,  124;  5  Cane.  361.  "  Pignus  est  quod  datur  propter  rem  ereditam,  quae  dum 
redditur,  statim  pignus  aufertur." — lb.  375.  We  refer  the  student  to  Sohm's 
Proeedure  of  the  Lex  Salica  generally,  espeeially  to  the  opening  sections,  e.g.  §  3. 

■•  Laws  of  Cnut,  Seeular,  e.  19.  Comp.  Laws  of  Ine,  e.  9.  "  If  anyone  take 
revenge  before  he  demand  justiee,  let  him  give  up  what  he  has  taken,"  ete.  And  see 
St.  Marlborough,  anno  1267,  i  St.  of  the  Realm,  p.  19.  "Et  nullus  de  cetero 
aut  districtiones  faciat  per  voluntatem  suam  absque  consideratione  curia;  domini 
ultiones  regis,"  etc.  5  Laws  of  Wm.  I.  i.e.  44. 


2o6  HISTORY    OF   PROCEDURE. 

This  is  all  that  is  to  be  found  in  the  custumals  prior  to  the 
Leges  Henrici  Primi ;  and  there  is  nothing  sufficiently  specific 
there  to  found  a  broad  conclusion  upon.  The  first  passage 
in  point  to  be  quoted  is  to  the  following  effect  :  It  is  not 
lawful  for  anyone,  without  judgment  or  license,  to  distrain 
("  namiare  ")  another  in  his  own  (the  distrainer's)  or  another's 
(fee  ?).!  But  this  passage,  given  here  in  full,  is  contained  in  a 
chapter  on  summons  to  the  Hundred  {"  De  Summonicione 
Hundreti"),  and  follows  directly  after  a  provision  that  every 
man  should  be  summoned  to  the  County  Court  seven  days  be- 
fore the  session.  The  other  passage  is  to  the  following  effect : 
From  him  who,  when  summoned  to  the  Hundred  [mot], 
refuses  to  come  without  any  true,  necessary  cause,  let  there 
be  taken  of  his  own  (property)  thirty  shillings  value,  the  first 
and  the  second  time,  and  let  there  be  distraint  in  the  Hundred 
[mot]  ;  and  let  him  be  sent  away  to  the  day  of  trial  or  of 
payment  on  the  giving  of  security,  and  being  in  seisin  (again) 
plead,  and  let  it  (the  fine  for  the  last  default,  it  seems)  be  for 
his  full  wite  ("pro  capitali  suo"),  and  let  this  distress  not  be 
taken  beyond  the  hundred. 2  These  provisions  are  in  cognate 
chapters,  and  it  is  fair  inference  that  the  first  as  well  as  the 
second  relates  to  auxiliary,  and  not  to  substantive,  distraint. 

The  only  passage  which  gives  any  hint  of  distraint  for 
debt  (substantive  distraint)  is  the  following :  "  Let  no  one 
presume  to  take  away  from  justice  or  /roj/i  Jiis  lord  di  distress, 
whether  it  has  been  seized  justly  or  unjustly,  but  let  him  seek 
it  again  justly  by  offering  security  and  a  term  for  making 
satisfaction."  J 

It  is  certainly  not  a  little  strange  to  find  no  more  definite 
mention  than  this  of  substantive,  civil  distraint  in  either  the 
pre-Norman  or  Norman  codes  of  Englan-d.     The  evidence  of 

'  Laws  Hen.  I.  c.  51,  §  3.  "  Et  nulli,  sine  judicio  vel  licencia,  naniiaie  liceat 
alium  in  suo  vel  alterius." 

"  lb.  c.  29,  §  2. 

5  lb.  c.  51,  §  5-  Sec  fuilher  tlie  passages  following  concerning  the  forcible 
recovery  of  a  distress. 


DISTRAINT.  207 

the  custumals  does  not  justify  an  assertion  of  the  use  of  such  a 
procedure  before  the  time  of  Henry  the  First.  That  it  did 
exist  at  and  from  this  time  is  clear;  the  chroniclers  now 
coming  to  our  aid  upon  the  subject.  And  it  is  hard  to  beheve 
that  it  was  an  importation  from  the  Continent  after  the 
Conquest.  The  absence  of  any  mention  of  it  in  the  Anglo- 
Saxon  codes  is  more  remarkable  than  the  absence  of  any 
allusion  to  the  duel,  because  of  the  stronger  probability  of  its 
existence.  But  if,  as  is  most  probable,  substantive  distraint 
for  debt  was  in  use  in  England  before  the  Conquest,  there  is 
strong  reason  in  what  has  gone  before  for  supposing  that  it 
could  be  exercised  only  upon  authority  of  court. 

In  the  earliest  case  of  distraint  for  debt  mentioned  in  the 
accounts  of  litigation  in  England  under  Henry  the  First,  it  is 
not  clear  whether  the  distraining  party  had  obtained  leave  of 
court  or  not.  The  record  merely  states  that  abbot  Faritius  of 
Abingdon  (who  died  anno  11 17)  ordered  all  the  movables  to 
be  found  upon  the  land  of  one  of  his  tenants,  in  arrears  of 
rent,  to  be  distrained. ^  In  other  cases  of  the  same  reign  the 
necessity  of  obtaining  judicial  authority  to  distrain  is  indi- 
cated. The  same  abbot  in  the  year  1106  obtains  a  writ  from 
the  king  commanding  a  tenant  to  perform  the  customary  land 
service  due  the  plaintiff;  otherwise  the  abbot  sJioidd  have 
liberty  to  constrain  him  by  his  fee.2  Within  half-a-dozen 
years  abbot  Faritius  obtains  another  writ  from  the  king,  com- 
manding a  recusant  tenant  to  pay  his  dues  on  penalty  of 
distraint  by  the  king's  officer.-^  The  same  king  grants  his 
writ  in  favour  of  the  bishop  of  Lincoln,  commanding  all  who 
hold  lands  of  him  within  a  certain  wapentake  to  come  into 

'  Ermenold  v.  Abbot  Faritius,  Placita  Ang.-Xorm.  131.  We  conjecture  that 
this  was  a  case  of  distraint  at  the  sole  will  of  the  abbot,  against  a  weak  tenant, 
and  that  it  furnishes  a  suggestion  as  to  the  origin  of  the  practice  in  England  of 
private,  non-judicial  coercion  between  landlord  and  tenant. 

-  "Quod  [servitium]  nisi  feceritis,  ipse  abbas  inde  te  coustringai  per  feudum 
tuum." — Faritius  v.  Gotselin,  Placita  Ang.-Norm.  92. 

■i  Faritius  V.  Hugh,  lb.  109.  A  writ  follows  authorising  the  abbot  himself  to 
do  justice  upon  Hugh. — lb.  no. 


2o8  HISTORY   OF   PROCEDURE. 

the  bishop's  court  and  there  do  right  in  respect  of  their  lands 
on  pain  of  distraint  of  goods.^ 

At  the  time  of  Glanvill's  treatise,  whatever  may  have  been 
the  case  in  earher  times,  judicial  distress  was  common  process 
by  lords  against  their  homagers.  But  no  evidence  is  yet  fur- 
nished of  extra-judicial  distraint.  After  stating  that  the  law 
permits  a  lord  by  judgment  (i.e.  by  leave)  of  his  court  to 
distrain  his  homager  to  appear  in  court  to  answer  charges, 
Glanvill  says  that  the  lord  may  also  by  law  distrain  his  men 
to  answer  for  default  of  services,  without  a  writ  of  the  king 
or  of  his  justiciar.2  In  another  chapter,  which  probably 
explains  this  last  statement,  he  says  that  lords  may  of  right, 
without  writ  of  the  king  or  justiciar,  but  by  the  judgment  of 
their  own  courts,  distrain  their  tenants  to  compel  payment  of 
reasonable  aids.^ 

That  the  (presumed)  pure  archaic  form  of  distress  did  not 
exist  in  England  in  the  time  of  Henry  the  Second,  for  debt 
not  arising  between  lord  and  man,  is  pretty  clear  from  the 
instructive  Case  of  Ailward.^  Here  was  primitive  distraint 
(if  distraint  without  license  e\xr  prevailed)  in  plainest  form. 
But  it  proved  a  very  unfortunate  undertaking  for  the  dis- 
trainer. Ailward  was  creditor  of  a  recusant  debtor,  and  at 
length  determined  to  secure  himself.  For  this  purpose,  he 
goes  to  the  house  of  his  debtor  in  the  latter's  absence,  and 
tearing  off  the  lock  (for  the  house  had  been  locked  by  the 
owner),  he  takes  the  same  in  pignjis,  and  entering  takes 
possession  of  an  auger  and  some  gloves,  and  departs. 

The  breaking  of  the  house  was  certainly  a  high-handed 
proceeding  ;  but  it  is  evident  that  this  was  not  done  with  any 
felonious  intent,  since  the  record  states  that  the  things  carried 
off  (at  least  the  lock,  and  doubtless  the  auger  and  gloves)  were 
taken  as  security — "in  pignus" — for  the  debt.  Nor  does  the 
housebreaking  appear  to  have  been  considered  in  the  accusa- 

'  Bishop  Robert  v.  Men  of  W,  lb.  139. 

"  Lib.  9,  c.  I,  §§  8,  9  ;  Beanies's  transl.  221.  3  ib.  c.  8. 

•*  Placita  Ang.-Noira.  260. 


DISTRAINT. 


209 


tion  which  followed.  The  charge  was  solely  the  larceny 
of  things  of  small  value  by  a  thief  caught  in  the  act  ("  fur 
manifestus")  ;  and  the  offence  deemed  so  slight  that  the 
public  accuser  {apparitor)  suggested  the  addition  of  other 
charges,  so  as  to  subject  the  offender  to  mutilation.  This  was 
done ;  the  additional  charges  being  also  of  the  commission  of 
thefts,  with  no  mention  (so  far  as  the  record  shows)  of  the 
housebreaking.  But  the  result  of  this  attempt  at  "primitive 
distraint"  was  judgment  that  the  offender  must  undergo 
the  ordeal  of  water,  and  this  was  followed  by  conviction  and 
mutilation. 

The  precise  nature  of  the  preliminaries  to  distraint  required 
by  the  early  English  law  is  not  certainly  known.  The  Salic 
law  required  the  creditor  in  i\\Q  fidem  facere  to  go  with  three 
witnesses  ("rachimburgii  ")  to  the  house  of  the  debtor  and 
there  make  demand  of  payment.  The  witnesses  accompanied 
the  creditor  for  a  double  purpose,  first,  to  be  able  to  testify 
that  the  proper  formalities  of  law  had  been  observed,  and 
secondly,  to  fix  a  price  or  valuation  upon  the  goods  to  be 
distrained. I     The  demand  of  payment  was  called  the  testare.   ■ 

Upon  the  debtor's  refusal  to  comply,  the  creditor  summons 
him  to  the  Hundred  Court  (Mallus  or  Mallum).  Having  come 
to  court,  the  creditor  proves  by  the  oath  of  himself  and  his 
witnesses  the  legality  of  the  steps  taken,  and  the  debtor's 
refusal  to  make  payment.  Then,  supposing  the  debtor  does 
not  propose  to  contest  his  liability,^  he  addresses  the  president 
of  the  court,  called  the  thunginus,  thus  :  "  I  call  upon  you, 
Thunginus,  to  strictly  oblige  ('nexti  canthicus')  my  adversary 
who  has  made  a  promise  to  me  and  owes  me  a  debt " — not,  it 

'  "Si  quis  ingenuus  aut  letus  alteri  fidem  fecerit,  tunc  ille  cui  fides  facta  est, 
in  xl,  noctes  aut  quomodo  placitum  fecerit  quando  fidem  fecit,  ad  domum  illius 
cum  testibus  vel  cum  illis  qui  preciimi  adpreciare  debent  venire  debet,  et  si  ei 
noluerlt  fidem  factam  solvere,  .  .  .  solidos  xv.  culpabilis  indicetur  super  debitum 
quod  fidem  fecerat." — Lex  Sal.  c.  50,  §  I  ;  Hessels  and  Kern,  316-324. 

-  Sohm  appears  to  think  there  could  be  no  denial  of  the  debt  at  the  Mallus, 
further  than  to  produce  the  royal  rescript  against  the  proceeding. — Gerichtsver- 
fassung,  62,  note.     But  this  is  by  no  means  clear. 

P 


2IO  HISTORY   OF    PROCEDURE. 

should  be  observed,  to  pay  the  debt,  but  to  fix  upon  him  the 
dlsabih'ty  of  lis  pendens  (in  modern  phrase)  ;  in  other  words, 
to  restrain  him  from  disposing  of  his  property,  and  the  thun- 
ginus  answers  :  "  I  strictly  oblige  him  in  this  respect,  in 
accordance  with  the  Salic  law."  ^  Then  the  creditor  must  give 
notice  of  the  act  of  the  thunginus,  requiring  all  persons  to 
refrain  from  buying  or  distraining  upon  his  goods  until  pay- 
ment of  the  present  claim.-  Whereupon  he  proceeds  directly 
to  the  debtor's  house,  before  sunset,  taking  witnesses  with 
him,  and  makes  another  demand  of  payment.  Upon  refusal, 
he  tarries  till  sunset ;  and  this  adds  to  the  debt  the  sum  of 
three  shillings.  The  same  ceremony  precisely  is  twice  re- 
peated (supposing  payment  to  have  been  refused  each  time) 
at  intervals  of  a  week's  time  ;  and  the  result  is  an  addition  of 
nine  shillings  to  the  debt.^ 

Payment  being  still  refused,  the  creditor,  after  the  third 
Avaiting  till  sunset,  receives  permission  to  distrain  upon  his 
debtor's  goods,  and  proceeds  to  do  so  in  accordance  with  the 
appraisement  of  the  rachimburgs  who  attended  him  at  the 
first  testa  re.  Some  question  has  arisen  (upon  what  directly 
follows  in  the  Lex  Salica)  if  the  seizure  now  granted  is  not 
after  all  made  by  the  reeve  ;4  but  the  better  opinion  is  that 
the  passage  following  relates  to  execution  at  the  second  term, 
after  the  promise  to  abide  judgment. 

The  language,  though  meagre,  of  the  English  custumals 
concerning  auxiliary  distraint,  to  which  reference  has  already 

'  "Si  adhuc  noluerit  conponere  quod  debet,  ad  Mallum  eum  mannire  debet 
at  sic  nexti  canthichius  mallare  debet  :  '  Rogo  te  thungine  ut  nexti  canthichius 
gasacio  [adversary]  meo  illo  qui  fidem  fecit  et  debitum  debet,'  et  nominare  debet 
quale  debitum  debeat  unde  ei  fidem  fecerat.  Tunc  thunginus  dicere  debet : 
'Nexti  cantichio  ego  ilium  in  hoc  quod  lex  Salica  habet.' " — Lex  Sal.  c.  50,  §  2  ; 
Hessels  and  Kern,  316-324. 

-  "Tunc  ipse  cui  fides  facta  est  testare  debet  ut  nulli  alteri  nee  solvat  ncc 
pignus  donet  solucionis  nisi  ante  ille  impleat  quod  ei  fidem  fecit." — Ibid. 

3  See  tlie  jiassages  immediately  following  those  here  quoted.  On  the  words 
"solcm  collocare,"  see  Hessels  and  Kern,  516,  §  185. 

•*  Comp.  Laws  of  Bavarians,  c.  7  ;  2  Cane.  380,  where  distraint  is  said  to  be 
by  the  judge.     But  that  may  mean  only  the  permission  of  the  judge  to  the  party. 


DISTRAINT,  211 

been  made,  makes  it  probable  that  the  foregoing  fairly  repre- 
sents the  process  of  substantive  distress  in  England.  The 
same  procedure  probably  prevailed  as  to  loans.  The  Salic 
law,  which  must  again  be  appealed  to  in  the  absence  of  better 
evidence,  presents  the  tcstare  part  of  the  process  in  full,  but 
omits  the  rest.  The  law  declared  that  one  who  refused  to  pay 
for  or  return  a  thing  loaned  to  him  should  be  summoned  to 
court.  To  this  end,  the  plaintiff,  as  in  the  case  above  pre- 
sented, went  with  witnesses  to  the  house  of  the  defendant, 
and,  on  demanding  his  dues,  waited  till  sunset.  Seven  days 
afterwards  he  does  the  same  thing,  and  at  the  end  of  another 
week  repeats  the  formality,  waiting  each  time  till  sunset  with 
his  witnesses  ;  i  the  effect  of  which  is  to  add  nine  shillings  to 
the  amount  of  the  defendant's  liability.^ 

The  remainder  of  the  process  of  satisfaction  is  not  directly 
stated,  but  there  are  indications  that  it  was  the  same  as  in  the 
fidem  facere  above  presented.  The  plaintiff  summons  the 
defendant  into  court,  and  upon  his  failure  to  contest  the 
claim,  calls  upon  the  thunginus  to  restrain  him  from  alien- 
ating his  property,  and  obtains  an  order  to  proceed  to 
private  distraint.^  If  the  loan  consisted  of  goods  still  in 
the  possession  of  the  defendant  and  obtainable,  it  is  probable 
that  seizure  was  made  of  these :  in  other  cases,  of  course, 
the  defendant's  own  goods  must  have  been  taken. 

The  observance  of  all  the  formalities  of  the  law  was,  in  the 
early  times  as  well  as  in  the  later  history  of  the  English  law, 
a  matter  of  the  utmost  importance  to  the  creditor.  He  not 
only  lost  the  goods  seized  in  case  he  had  made  a  false  step, 
but  he  was  also  subjected  to  a  fine  in  favour  of  the  debtor,4 


'  Upon  refusal  the  plaintiff  each  time  says:  "Quia  res  meas  noluisti  reddere 
quas  tibi  prestiteram  in  hoc  eas  tene  nocte  proxima  quod  lex  Salica  continet." — 
Lex  Sal.  c.  52.  ^  Ibid.  3  Sohm,  Procedure,  §  6. 

■»  "  Se  quis  debitorem  suum  per  ignorantiam  sine  judice  pignorare  prcesumpserit 
antequam  eum  nesti  canthechigio,  et  debitum  perdat  et  insuper  similiter  si  male 
pignoraverit  cum  lege  conponat,  hoc  est  capitale  et  xv.  solidos  culpabilis  judicetur.'' 
Lex  Sal.  c.  74 ;  Sohm,  Procedure,  §  6. 

P    2 


212  HISTORY   OF   PROCEDURE. 

just  as  in  later  times  the  landlord,  in  the  like  event,  became 
liable  as  a  trespasser  in  respect  of  all  acts  subsequent  to  the 
misstep,  sometimes  a  trespasser  ab  initio. 

Another  action  in  which  private  seizure  as  substantive 
process  was  a  mode  of  bringing  suit  by  the  early  English  law, 
was  the  proceeding  for  the  recovery  of  movables  lost  or  stolen 
from  the  owner  or  lessee.  And  for  the  purpose  of  the  plaintiff's 
case  it  was  immaterial  whether  the  goods  or  animals  had  been 
lost  or  stolen,  though  as  a  matter  of  fact,  if  the  chattels  when 
found  by  the  owner  or  lessee  were  not  surrendered,  the  accu- 
sation following  was  theft.  The  same  was  true  when  a  person 
into  whose  lands  lost  animals  had  been  traced  by  the  plaintiff 
refused  to  allow  search  therein,  or  to  make  search  himself,  or 
to  deliver  the  animals. 

The  first  step  of  the  plaintiff  who  had  missed  his  property 
was  to  raise  the  cry  ("hue  and  cry  "),.'  and  to  call  upon  his 
neighbours  to  follow  the  trail  with  him — vcsiigiwit  viinarc  of 
the  Salic  law.  The  laws  of  yEthelstan  declared  that  "  every- 
one who  hears  the  call  should  be  ready  to  aid  another  in 
pursuing  the  track,  and  in  riding  with  him  as  long  as  he 
knows  the  track  ;  and  after  the  track  has  failed,  always  let 
one  man  be  found  where  there  are  many  people,  as  well  as 
from  a  tithing  where  there  are  less  people,  for  the  riding  or 
going — unless  there  is  need  of  more — wherever  it  is  necessary, 
and  where  all  choose." 2 

Edmund's  laws  declare  that  "it  has  been  decreed  con- 
cerning the  pursuit  and  search  for  stolen  cattle,  that  the  pursuit 
be  carried  on  to  the  vill,  and  that  there  be  no  assault  or  any 
prevention  of  the  way  or  search.  And  if  the  track  cannot  be 
traced  out  of  the  land,  let  accusation  be  made  wherever  there 
is  suspicion  or  doubt."  ^     When  the  cattle  had  been  traced  into 

'  The  "  harou  "  of  Nonnandy,  sometimes  thought  to  be  a  call  to  Rollo,  l)ut 
probably  without  foundation. 

^  Laws  of  /Ethelst.  (Judicia  Civitatis  Lundonix')  v.  c.  4. 
"  Laws  of  Kdm.  c.  3,  §  6, 


DISTRAINT.  213 

another  jurisdiction  ("  st;cth  "),  it  was  provided  by  the  Ordi- 
nance respecting  the  Dunsetas,  that  the  owner  should  commit 
the  tracing  to  the  men  of  the  country,  or  show  by  some  mark 
("  mid  mearce  ")  that  the  pursuit  was  right.  "  Let  him  then 
take  to  it  who  owns  the  land,  and  have  the  inquiry  to  himself, 
and  nine  days  afterwards  compensate  for  the  cattle,  or  deposit 
an  under-pledge  on  that  day,  which  shall  be  worth  half  as 
much  again  as  the  cattle  ;  and  in  nine  days  from  that  time  let 
him  redeem  the  pledge  by  lawful  payment.  If  it  be  said  that 
the  track  is  wrongfully  pursued,  then  must  he  who  traces  the 
cattle  lead  to  the  boundary  ('sta^th'),  and  there  himself,  one 
of  six  unchosen  men  who  are  true,  make  oath  that  he,  according 
to  folk-right,  makes  lawful  claim  on  the  land,  as  his  cattle 
went  thereupon," ' 

If  the  search  led  to  a  man's  house,  the  plaintiff  had  the 
right,  according  to  the  laws  of  Burgundians,  to  require  that 
the  doors  should  all  be  opened,  the  outer  and  the  inner,  other- 
wise the  occupant  (unless  he  delivered  the  property)  was  to  be 
deemed  the  thief.^  The  same  was  true  under  the  Ribuarian 
code  ;^  and  there  is  no  reason  to  suppose  that  the  law  was 
different  in  England.  The  Salic  law  placed  a  fine  of  sixty-two 
shillings  and  a  half  upon  the  occupant  for  closing  his  house  to 
the  plaintiff; 4  but  this  merely  represented  the  highest  fine 
that  could  be  imposed  upon  the  thief.^ 

But  the  plaintiff  had  no  right  to  make  forcible  entry  into  a 
house  to  search  for  his  property :  it  was  enough  for  him  that 
the  law  pronounced  the  occupant  the  thief,  and  subjected  him 
to  the  liability  attaching  thereto.  If  the  plaintiff  forced  an 
entrance,  he  was  liable,  by  the  Ribuarian  law,  to  a  penalty  of 
fifteen  shillings. ^ 

Having  discovered  his  property,  the  plaintiff  was  to  put 

'  Dunsetas,  c.  i.  '  Laws  of  the  Burg.  c.  16,  §  i. 

3  Laws  of  the  Rib.  c.  47,  §  2.  4  Lex  Sal,  c.  66,  Hessels  and  Kern. 

5  Sohm,  Procedure,  §  10 ;  and  comp.  Lex  Sal.  c  2,  §  17;  c.  3,  §  8;  c.  4,  §  5. 
^  Laws  of  the  Rib.  c.  47,  §  3. 


214  HISTORY   OF    PROCEDURE. 

his  hand  upon  it  by  way  of  claim,  and  summon  to  court  the 
party  in  whose  possession  he  had  found  it.  The  object  was  to 
bring  the  possessor  and  the  chattel  before  the  tribunal,  in 
order  there  to  test  the  truth  of  the  plaintiffs  accusation  and 
claim. I 

A  third  kind  of  substantive  process  of  distraint,  of  the 
Norman  period,  was  what  was  called  in  the  Salic  law  the 
"ligare."  This  was  criminal  process,  the  term  "  ligare  "  itself 
indicating  its  characteristic  feature,  to  wit,  the  binding  of  the 
defendant ;  which  was  lawful  either  when  he  was  taken  in  the 
act  or  caught  on  the  pursuit. 

Like  the  procedure  for  the  recovery  of  movables,  the 
ligarc  was  begun  (when  the  party  was  not  taken  in  the  act) 
by  raising  the  hue  and  cry ;  and  it  was  incumbent  upon  all 
who  heard  it  to  join  in  the  pursuit.  He  who  heard  the  cry 
and  failed  to  follow  was  to  pay  a  fine  to  the  king,  unless  he 
could  purge  himself  of  the  presumed  violation  of  law.^  And 
on  the  other  hand,  he  who,  without  pursuit  and  cry,  appre- 
hended a  thief  and  delivered  him  to  the  person  from  whom  he 
had  stolen  was  entitled  to  receive  from  him  the  sum  of  ten 
shillings  at  the  first  court,  or,  if  justice  were  not  then  granted 
him,  forty  shillings  at  the  next  court. ^  But  if  a  man  met  a 
thief  and  permitted  him  to  go  without  raising  the  cry,  he  was 
liable  to  the  thief's  wergeld,  unless  he  could  prove  that  he  did 
not  know  the  man  to  be  a  thief.4 

The  subject  is  well  illustrated  by  the  Case  of  AilwarG,^ 

»  Sohm,  Procedure,  §  lo. 

"^  "Qui,  clamore  audito,  insequi  supersederit,  de  sursisa  erga  regem  emendet  ; 
nisi  se  juramento  purgare  potuerit." — Wm.  I.  i.  c.  50. 

3  See  Kelham's  ed.  of  the  laws  of  the  Conqueror,  c.  5.  "  Is  qui  prehenderit 
latronem  absque  secta  et  absque  clamore,  quern  dimiserit  ei  cui  damnum  fecerit,  et 
venerit  postea,  justitiam  postulaturus,  rationi  conveniens  est,  ut  det  x.  solidos  de 
hengwitc  et  fineni  faciat  justitire  ad  primam  curiam,  et  si  confirmetur  in  curia, 
absciuclicentia  justititc,  sit  forisfacturade  .\1.  solidis." — Comp.  ib.  i.  c.  4,  in  Thorpe 
and  in  Schmid. 

•*  "Si  quis  latroni  obvians,  sine  clamore  eum  transire  pcrmittit,  in  forisfactura 
sit  ad  valenciam  latronis  ;  nisi  juramento  probaverit  quod  eum  latronem  esse 
nescivit." — Wm.  I.  i.  c.  49.  s  Phcita  Aug. -Norm.  260. 


DISTRAINT.  215 

already  referred  to  for  another  purpose.  Ailward  breaks  into 
his  debtor's  house,  in  tlie  latter's  absence,  to  obtain  security 
for  his  debt,  but  being  discovered  flees,  and  is  pursued  and 
caught  by  the  debtor^  having  in  his  hands  property  of  the 
latter.  Ailward  having  apparently  resisted  capture,  the 
debtor,  after  wounding  him  on  the  head  with  a  stone,  draws 
a  knife  {ciiltcJliis)  and  thrusts  it  into  the  creditor's  arm 
and  then  secures  him  and  takes  him  to  the  house  he  had 
broken  into,  and  there  binds  him  as  a  thief  manifest,  "  cum 
concepto  furto."  Charges  of  the  commission  of  other  offences 
having  been  added,  so  as  to  subject  the  party  to  mutilation, 
a  pack  containing  skins,  a  cloak,  some  linen  cloth,  and  a 
gown,  was  hung  upon  his  neck,  to  which  was  added  some 
sharp  instrument,  the  whole  probably  representing  what  he 
was  charged  with  stealing ;  and  in  this  condition  he  was 
brought  before  the  County  Court  at  Bedford  on  the  following 
day.' 

The  debtor  probably  incurred  no  liability  for  the  wounds 
inflicted  upon  the  alleged  thief,  since  it  was  lawful  even  to  slay 
a  thief  if  he  fled  or  resisted  capture.  "  If  anyone,"  said  the 
law  of  Ine,  "  claim  the  wergeld  of  a  slain  man,  he  [the  slayer] 
may  prove  that  he  killed  him  as  a  thief,"  2  and  he  swore  (or 
might  swear  when  such  were  the  fact)  that  he  killed  him  in 
flight.3 

The  Case  of  Ailward  is  of  further  interest  as  an  illustration 
of  the  Germanic  rule  that  when  the  accused  was  taken  in  the 

'  The  passage  deserves  literal  quotation.  "Qui  [i.e.  the  debtor]  insecutus  eum 
compreheiidit,  et  cotem  a  nianu  bajulantis  extorquens  caput  vulneravit.  Extrac- 
toque  cultello  brachium  transfigens,  eum  quasi  furem  manifestum  cum  concepto " 
furto  reductum  ligavit  in  domo  quam  fregerat.  .  .  .  Posita  est  itaque  juxta 
ligatum  sarcinula  pellium,  larnse,  lintei,  togse,  cum  ferramento  quod  volgonium 
valgus  appellat.  Postera  die  ad  cognitionem  Ricardi  cujusdam  vicecomitis  mili- 
tumque  comitatis  cum  prsedicta  sarcinula  ductus  est,  qua:  et  collo  ejus  appensa 
est." 

-  Ine,  c.  21. 

3  lb.  c.  35.  "Qui  furem  occiderit,  licet  ei  probare  jurejurando,  quod  eum 
fugientem  pro  fure  occidit."  See  also  cc.  I2,  i6;  c.  28,  §  I ;  /Ethelst.  (Jud. 
Civ.  Lond.)  v.  c.  i,  §§  I,  4. 


2i6  HISTORY   OF   PROCEDURE. 

act,  he  could  be  brought  to  trial  immediately,  not  being  entitled 
to  demand  a  term  preceded  by  a  fixed  delay.  If,  in  such  cases, 
according  at  least  to  the  Salic  law,  the  court  were  not  in 
session,  the  neighbourhood  immediately  convened  to  give 
judgment  upon  the  flagrant  act.i 

'  Sohm,  Procedure,  §  17. 


CHAPTER  VL 

SUMMONS. 

Prior  to  the  Norman  Conquest,  personal  summons  to  the 
trial  of  a  cause  was  always  a  private,  extra-judicial  act,  per- 
formed by  the  plaintiff;  and  this  continued  afterwards  to 
be  the  case  to  some  extent  in  all  the  courts  except  in  the 
superior  tribunals  of  the  king.  The  same,  indeed,  was 
probably  true  to  some  extent,  for  a  considerable  time,  even 
in  the  King's  Court :  probably  at  first  this  was  the  usual 
practice  of  the  suitors  there.  But  as  time  progressed,  the 
custom  of  sending  summons  by  an  officer  furnished  with  the 
king's  writ  became  established,  and  finally  entirely  superseded 
the  ancient  mode. 

But  there  was  a  general  summons,  also,  which  concerned 
the  entire  community  ;  the  common  summons  to  the  Eyre^ 
County,  Burghmot,  or  (it  seems)  Hundred,  which  Avas  pro- 
claimed through  the  cities,  boroughs,  and  markets.  This 
summons,  being  publicly  made,  could  not  be  denied,  in 
distinction  from  the  special  summons  to  a  particular  trial ; 
though  essoins  could  be  sent  for  absence  in  the  one  case  as 
well  as  in  the  other.  ^ 

Private  summons  was  effected,  according  to  the  laws  of 
Henry  the  First  (which  may  be  taken  as  representing  upon 

'  2  Nichols,  Britton,  339. 


2i8  HISTORY   OF  PROCEDURE. 

this    point,   probably,    the    entire    Norman    period),   by    the 
plaintiff  proceeding  with  witnesses  to  the  house  of  the  defen- 
dant, and,  after  having  made  demand   of  payment  without 
avail,  requiring  the  defendant  to  come  to  court.     "  He  who 
was  resident  at  his  own  house,"  says  the  custumal  referred  to, 
"ought  to  be  summoned  for  every  plea  with  witnesses  ;"' 
whose  duty  it  was  to  see  that  the  steps  required  by  law  were 
duly  taken,  and  then  to  give  evidence  thereof  before  the  court. 
If  the  defendant  were  at  home,  summons  was  to  be  made 
openly  to  him,  or  to  his  steward,  or  to  his  family.     A  term  of 
seven  days  was  to  be  allowed  for  appearance  if  the  defendant 
were  in  the  county  ;  if  in  the  next  county,  a  term  of  fifteen 
days  ;  if  in  the  third  county  thence,  three  weeks ;  if  in  the 
fourth  county,  four  weeks.     More  time  than  four  weeks  was 
not  to  be  allowed  him    wherever  he  might  be  in  England, 
unless  a  competent  essoin  detained  him.     If  he  were  beyond 
sea,  he  was  to  be  allowed  six  weeks  and  a  day  for  coming  to 
and  crossing  the  channel,  unless  he  were  in  the  king's  service, 
or  unless  sickness  or  a  storm  or  some  other  sufficient  cause 
further  delayed   him.2     A  defendant  could   not,   in   the  first 
instance,  be  required  to  come  into  court  immediately,  except 
in  criminal  cases  when  he  was  taken  in  the  act,  or  apprehended 
upon  a  charge  of  theft,  murder,  treason,  robbery,  outlawry, 
housebreaking,  arson,  or  counterfeiting.^ 

If  a  person  held  several  estates  as  tenant  of  different  lords, 
and  was  impleaded  by  any  of  his  lords^  he  was  to  be  summoned 
at  the  estate  which  he  held  of  the  plaintiff,  wherever  it  was, 
and  not  elsewhere.4  if  the  defendant  held  several  fees  of  one 
lord,  he  was  to  be  summoned  at  such  fee  as  the  lord  chose.^ 
And  a  person  who  held  several  estates  in  the  county,  that  is, 
it  seems,  within  and  beyond  the  hundred  in  which  he  resided, 

'  Laws  Hen.  I.  c.  41,  §  2.  -  Ibid. 

3  lb.  c.  47  ;  c.  61,  §  17.  In  these  cases  the  accused  was  at  once  put  upon 
trial,  and  that  without  counsel.  In  other  cases  he  was  entitled  to  take  counsel  of 
his  friends  and  relatives.— lb.  c.  46,  §  3  5  c.  48,  §  I  J  c.  49,  §  I  ;  po^^j  P-  229. 

■t  lb.  c.  4I'  §  3  ;  c.  55,  §  I.  5  lb.  c.  41,  §  4. 


SUM^IONS:  219 

was  to  be  summoned  at  that  estate  at  which  he  dwelt  with 
his  family,  even  though  he  were  sued  about  another.'  The 
cause  was  to  be  tried  in  ordinary  cases  (that  is,  when  the 
parties  did  not  hold  of  different  lords)  in  the  forum  of  the 
locality  where  the  demand  arose,  unless  resort  was  had  to  the 
King's  Court.2 

The  proceeding  being  summons  to  court  upon  refusal  of 
payment,  and  not  intended  to  lead  to  distraint,  nothing  more 
could  be  done  after  the  summons  until  the  day  set  for  the 
court.  If  the  defendant  then  appeared,  the  case  proceeded 
to  the  pleadings.  If  he  did  not  appear,  the  plaintiff  must 
summon  him  again  as  before  to  another  term,  and,  in  case  no 
essoin  had  been  sent,  require  him,  besides  answering,  to  pay 
the  fine  of  thirty  pence,  imposed  by  law  for  refusing  to  obey 
the  first  summons.  If  he  failed  to  appear,  without  excuse,  at 
the  second  term,  he  was  liable  to  another  fine  of  thirty  pence, 
unless  he  had  a  lawful  essoin  ;  and  then,  as  it  seems  (the  Leges 
are  not  clear  upon  the  point),  he  could  be  distrained  in  the 
Hundred  Court.  The  plaintiff,  however,  was  to  surrender  the 
distress  to  him  upon  his  producing  pledges,  and  then,  being  in 
seisin  again  of  his  property,  he  was  entitled  to  plead  ("  saisiatus 
placitet ")  at  the  day  for  pleading  or  for  paying  his  fines 
("emendandi  ").^  In  the  King's  Court  of  the  time  of  Glanvill 
distress  followed,  at  least  in  cases  of  writs  of  right,  only  upon 
the  fourth  ineffectual  summons,  as  will  be  seen  presently. 

Great  stress  was  laid  upon  this  right  of  the  party  to  replevy 
his  property ;  and  a  digression  may  for  convenience  here  be 
made.  Upon  a  tender  of  pledges,  the  defendant  could  not  be 
impleaded  by  the  creditor  or  other  plaintiff  who  had  distrained 
unless  the  latter  would  return  the  property.  "  Let  no  one  while 
disseised  plead,"  that  is,  be  compelled  to  plead,  said  the  Leges, 

'  Laws  Hen.  c.  41,  §5.  Comp.  Bracton,  333  b;  2  Nichols,  Britton,  340; 
Fleta,  378,  §  4. 

^  "  Et  ibi  semper  causa  agatur  ubi  crimen  admittitur." — Laws  Hen.  L  c.  5> 
§  12.      "  Actor  forum  rei  sequi  debet." — Placita  Ang.-Norm.  240,  note. 

3  Laws  Hen.  L  c.  29,  §  2. 


220  HISTORY   OF   PROCEDURE. 

"  unless  the  suit  is  brought  about  the  disseisin  itself,"  i  that  is,  to 
recover  seisin  ;  as  in  the  later  Avrit  of  novel  disseisin,  "  And 
after  anyone  disseised  has  pledged  his  law  or  right  to  his  lord, 
and  has  added  sureties  if  necessary,  he  ought  to  be  put  in 
seisin."-  The  common  entries  in  the  Pipe  Rolls  of  fines  paid 
or  due  to  the  king,  for  permission  to  plead  ''  saisiatus,"  seem  to 
refer  to  the  same  principle  of  law.  Thus  in  the  year  1175, 
Glanvill,  when  cnstos  of  the  honour  of  earl  Conan,  rendered 
account  in  the  Exchequer  of  a  payment  of  ten  marks  by 
William  de  L.  "  ut  [Willielmus]  placitaret  saisitus  de  terra 
sua."  3  In  like  manner  William  del  L.,  the  same  year,  rendered 
account  of  five  marks  "  ut  placitet  saisitus  de  terra  sua."4 
The  meaning  appears  to  be  that  the  party  was  to  have 
seisin  of  his  lands,  which  perhaps  had  been  distrained,  and 
then  stand  to  right  at  the  plea  of  the  person  professing  a 
claim.  The  entries  in  the  rolls  imply  a  refusal  upon  the  part 
of  the  distrainer  to  surrender  the  property,  and  a  resort 
thereupon  to  the  king's  writ  to  compel  him. 

A  similar  result  may  have  occurred  when  a  powerful 
tenant  had  forfeited  his  tenure,  but  refused  to  restore  pos- 
session to  his  lord,  holding  it,  e.g.,  on  account  of  some  claim 
against  his  lord  which  the  latter  denied.  The  tenant,  on  the 
analogy  of  the  cases  mentioned,  Avould  be  required  to  sur- 
render the  estate  to  the  lord  from  whom  he  had  received  it, 
and  then  the  latter  might  be  impleaded  as  to  the  tenant's 
claim.  This,  indeed,  is  conjecture  ;  but  there  is  an  entry  in 
the  Pipe  Roll  of  the  year  1 174  which,  besides  being  interesting 
in  itself,  lends  some  support  to  the  suggestion  ventured. 
Silvester  de  Bray,  says  the  entry,  was  accounted  debtor  in  the 
Exchequer  in  forty  shillings,  that  he  might  be  in  seisin  of  his 
mortgage  of  S.  when  impleaded  about  it  ("  ut  placitet  saisitus 


'  Laws  Hen.  c.  53,  §  5  ;  c.  61,  §  21. 

^  lb.  c.  53,  §  5-     The  expression  "legem  vel  rectum  domino  suo  vadiaverit" 
did  not  refer  to  the  final  act  of  compurgation,  but  to  tlie  pledge  given  to  make  it. 
!  Placita  Ang.-Norm.  273.  4  Ibid. 


SUMMONS.  221 

de  vadio  suo  de  S.'V  That  is,  before  the  mortgagee  in  pos-  . 
session,  to  use  a  modern  term,  could  be  allowed  to  prefer  a 
claim  to  the  premises  he  must  surrender  the  property  to  the 
mortgagor  from  whom  he  had  received  it.  If  this  interpre- 
tation be  correct,  the  existing  doctrine  of  the  estoppel  of 
a  tenant  to  deny  his  landlord's  title  has  (supposing  there 
has  been  no  severance  of  continuity  between  the  ancient 
"  estoppel  "  and  the  modern)  an  ancient  lineage. 

The  right  of  being  in  seisin  when  impleaded  appears  in 
another  form  in  Glanvill.  If  in  a  writ  of  right  in  the  King's 
Court  the  tenant,  summoned  the  fourth  time,  failed  to  appear 
or  to  send  a  valid  essoin,  the  land  was  distrained  into  the 
king's  hand.  Still,  if  the  tenant  now  appeared  within  fifteen 
days,  he  was  permitted  to  replevy  his  property,  on  giving 
pledges  and  accounting  for  his  failure  to  obey  the  sum- 
monses.2  Being  thus  saisiatus,  he  was  entitled  to  plead. 
This  leads  to  the  further  remark  that  replevying  was  a  con- 
dition imposed  upon  the  defendant  as  well  as  a  privilege, 
when  the  distraint  was  effected  under  process  of  law  for  the 
defendant's  default  of  appearance  ;  a  condition  upon  the  per- 
formance of  which  his  right  to  defend  the  suit  now  depended. 

The  author  commonly  reputed  to  be  Peter  of  Blois, 
writing,  it  seems,  in  the  time  of  Henry  the  Second, ^  refers  to 
this  subject  in  the  same  way,  both  as  to  ecclesiastical  and 
temporal  causes ;  going,  however,  beyond  the  terms  of  the 
English  law.  He  says  that  when  a  priest  has  been  instituted 
into  a  church  in  an  unlawful  manner,  without  the  consent  of 
the  bishop  or  the  archdeacon,  and  the  bishop  or  archdeacon 
has  expelled  him  without  judicial  process  ("sine  ordine 
judiciario"),  there  was  a  question  whether  the  priest  ought 
to  be  restored  to  possession  ;  but  it  was  his  opinion  that  he 
ought   to   be   immediately   restored,    because   of   the   illegal 

'  Madox>  Hist.  Exch.  297  (fol.  ed.).  -  Glanvill,  lib.  i,  c.  16. 

'  This  would  be  the  case  probably  whether  he  was  the  elder  or  the  younger 
Peter. 


222  HISTORY   OF   PROCEDURE. 

expulsion,  and  a  plea  then  preferred  against  him.  "  In  secular 
causes  no  one  was  to  be  expelled  from  a  possession  except 
by  process  of  law,  however  bad  the  possession  might  be. 
Nor  was  a  person  when  expelled  bound  to  answer  before 
restitution,"  according  to  the  canons,  except  in  actions  of 
inheritance.!  By  the  English  law  of  the  time  of  Glanvill, 
however,  the  writ  of  novel  disseisin  failed  if  the  defendant 
set  up  a  title  to  the  property  in  question  ;  a  thing  which  he 
was  permitted  to  do  and  thus  terminate  the  recognition 
elected  to  try  the  simple  question  of  disseisin. 2  The  person, 
therefore,  who  had  been  disseised,  though  violently,  by  another 
Avho  had  a  better  right  could  not  recover  the  possession  by  mere 
virtue  of  the  disseisin. 

A  person  might  appoint  his  steward  or  other  servant  an 
attorney  to  receive  summons  for  him  and  to  take  his  place 
for  all  purposes  ;  and  service  upon  such  person,  made  before 
witnesses,  was  valid  whether  reported  to  the  defendant  or  not. 
And  if  the  attorney  failed  to  appear  at  the  plea,  judgment 
could  be  had  for  the  default.  ^  That  is,  as  it  seems,  the  party 
in  default  was  to  be  amerced :  final  judgment  upon  the 
plaintiff's  demand  could  not  be  declared  at  the  first  default 
nor  even  judgment  of  distraint,  as  we  have  seen.  The  cus- 
tumal  of  Henry  the  First  adds  that  if  the  principal  suffered 
damage  at  the  hands  of  his  attorney  by  non-appearance,  he 
should  "speak  with  him  about  the  matter." 4     The  attorney 


'  Peter  Blesensis,  c.  42,     See/os/,  p.  362. 

=  Glanvill,  lib.  13,  c.  38,  §  2.  The  fact  that  the  defendant  could  succeed,  and 
yet  that  he  might  be  amerced  for  a  violent  disseisin,  shows  this.  The  subject  will 
be  referred  to  again  in  a  later  chapter.  Any  of  the  possessory  recognitions  could  be 
defeated,  it  seems,  by  a  defence  of  title.  See  e.g.  as  to  the  assise  of  mort  d'ancestor, 
Glanvill,  lib.  13,  c.  10,  §§  3-8. 

3  If  the  attorney  were  appointed  in  court  "ad  lucrandum  vel  perdendum," 
appearance  and  defence  were  to  be  made  by  him. — Glanvill,  lib.  II,  c.  I,  §  i. 
But  if  he  were  appointed  only  to  receive  service,  appearance  by  him  could  not,  it 
seems,  be  entered  for  the  principal.  It  is  hardly  necessary  to  say  that  the  term 
"attorney"  is  not  used  in  the  modern  sense. 

4  Laws  lien.  I.  c.  42,  §  2. 


SUMMONS.  223 

was   to  notify  his  lord  by  a  faithful   messenger  if  he  were 
unable  to  appear.  ^ 

If  anyone  had  been  impleaded  according  to  law,  "of 
pleas  named,"  and  failed  to  appear  at  the  appointed  term,  he 
incurred  penalties  in  all  the  pleas  of  which  he  had  been  im- 
pleaded by  name,  unless  he  had  been  detained  by  a  lawful 
excuse.  But  it  was  one  thing  to  be  summoned  by  a  man's 
lord  to  come  to  him  on  this  or  that  day  to  answer  a  plea 
named  to  him,  and  another  thing  to  be  summoned  when 
no  plea  was  named.  If  pleas  were  named,  and  the  party 
made  default,  he  was  to  pay  his  "overseunesse"  according 
to  the  custom  of  the  place,  2  and  be  summoned  to  appear 
at  another  day.  Then  he  should  exculpate  himself  of  the 
plea  or  make  compensation,  unless  he  could  send  a  good 
essoin.  3 

Summons  was  a  matter  to  be  distinctly  proved,  and  hence 
was  made  in  the  presence  of  witnesses.  These,  from  being 
merely  witnesses  before  the  middle  of  the  twelfth  century, 
afterwards  assume  the  ancient  part  of  the  plaintiff  and 
become  themselves  summoners  (in  addition  to  being  witnesses 
of  the  summons)  by  the  time  of  Glanvill — the  "good  sum- 
moners "  of  the  familiar  writs.  How  the  change  had  come  to 
pass  is  not  known  ;  nor  is  it  known  to  have  extended  beyond 
the  royal  courts.  Probably  the  ancient  practice  still  prevailed 
in  the  popular  courts.  In  the  Ecclesiastical  Court  of  the 
thirteenth  century,  as  well  as  in  the  superior  temporal  courts 
of  the  time,  the  summoners  become  a  distinct  class  of  officers  ; 
and  it  is  not  improbable  that  this  was  also  the  case  both  in 
the  clerical  courts  and  in  the  royal  tribunals  of  the  time  of 
Glanvill.4 

'  Laws  Hen.  I.  c.  42,  §  2. 

'  The  amount  of  this  fine  varied  with  the  rank  of  the  party  and  the  court,  as 
well  as  with  the  place.— Laws  Hen.  I.  c.  34,  §  3  ;  cc.  35,  36. 

3  lb.  c.  50. 

^  The  need  of  "gooJ  summoners"  may  find  an  explanation  in  the  writers  of 
the  thirteenth  century.  It  was  found  necessaiy  for  the  ecclesiastical  councils  to 
in'.eifere  with  tlie  corrupt  practices  of  summoners,  and  make  better  provisions 


224  HISTORY   OF   PROCEDURE. 

Whether  the  summons  to  a  particular  plea  was  required 
to  be  made  in  a  set  formalism  of  words  is  unknown;  probably 
it  was  not,  but  all  that  can  be  certainly  affirmed  is  that  it 
must  have  sufficiently  described  the  cause  of  action  as  to 
identify  it,  and  have  required  the  party  on  refusal  of  the 
demand  to  appear  before  such  a  court  on  such  a  day,  there  to 
hear  judgment. ' 

In  the  Norse  procedure  the  summons  was  executed  in 
precise,  established  form,  varying  only  as  the  difference  of 
fact  required.  In  the  Icelandic  Njal-Saga  there  is  an  account 
of  a  suit  of  Gunnar  against  Hrut  for  the  recovery  of  Unna's 
dowry.  Unna  had  been  the  wife  of  Hrut,  but  had  obtained  a 
divorce  by  the  aid  of  her  father  Mord,  who  was  accounted  a 
great  lawyer.  Having  then  secured  a  divorce  for  his  daughter, 
Mord  wished  now  to  recover  the  dowry  which  he  had  given 
with  her  to  Hrut ;  but  upon  making  demand  for  the  goods, 
he  was  met  by  the  defendant  with  a  challenge  to  the  duel. 
Mord,  being  old  and  no  match  for  Hrut,  declined  the  duel, 
and  soon  afterwards  died.  Unna  as  his  heir  now  hands  over 
the  suit 2  to  a  powerful  man  named  Gunnar,  who  is  advised  by 
the  great  lawyer  Njal  to  disguise  himself  as  a  pedlar  from  the 

concerning  summons.  See  3  Matthew  Paris,  89,  90  (Bohn).  As  to  the  legal  sense 
of  the  word  "good,"  see  Hengham  Magna,  c.  5  ;  2  Nichols,  Britton,  330.  The 
summoner  was  an  unsavoury  creature  in  the  time  of  Chaucer,  who  ^^'rote  in  the 
latter  part  of  the  same  century. 

"Now  certes "  quod  this  somonour,  "  so  fare  I ;  " 

I  spare  nat  to  taken,  God  it  woot, 

But  if  it  be  to  hevy  or  to  hoot, 

What  I  may  gete  in  conseil  privily  ; 

No  maner  conscience  of  that  have  I ; 

Nere  [but  for]  myn  extorcioun  I  myghte  nat  lyven, 

Nor  of  swiche  japes  [such  tricksj  wol  I  nat  be  shryven. 

Stomak,  ne  conscience,  ne  knowe  I  noon  ; 

I  shrewe  [curse]  these  shrifte-faders  everychoon. " 

Canterbury  Tales  (Friar's  Tale),  11,476-11,484. 

'   "  Suum  judicium  auditurus,"  referring  to  the  medial  judgment.  See  chapter  ix. 
-  As   in   the    appointment  of  an   attorney  in   England    "ad    lucrandum  vel 
perdendum,"  noticed  hereafter. 


SUMMONS.  225 

North,  and  go  with  others  to  the  house  of  Hrut.  Njal  says 
that  conversation  will  in  the  evening  turn  upon  the  case  of 
Mord,  which  had  become  famous,  and  of  H rut's  success,  of 
which  Hrut  was  very  proud.  Gunnar  must  then  request  Hrut 
to  tell  him  how  Mord  might  still  have  taken  up  the  suit  at 
another  Thing,  as  Hrut  had  said  he  might  have  done.  Hrut, 
complying  with  the  dangerous  request,  will  say  :  "  In  this 
suit  I  must  be  summoned  so  that  I  can  hear  the  summons, 
or  I  must  be  summoned  here  in  my  lawful  house  " — in  which 
particular  the  agreement  of  the  Norse  procedure  with  the 
English  law  will  be  noticed.  Gunnar  will  then  desire  Hrut  to 
repeat  the  proper  summons,  and  then  "  I,"  he  is  instructed  to 
say,  "  will  say  it  after  thee." 

"Then  Hrut,"  says  Njal,  "will  summon  himself;  and 
mind  and  pay  great  heed  to  every  word  he  says.  After  that 
Hrut  will  bid  thee  repeat  the  summons,  and  thou  must  do  so, 
and  say  it  all  wrong,  so  that  no  more  than  every  other  word 
is  right.  Then  Hrut  will  smile  and  not  mistrust  thee,  but  say 
that  scarce  a  word  is  right.  Thou  must  throw  the  blame  on 
thy  companions,  and  say  they  put  thee  out,  and  then  thou 
must  ask  him  to  say  the  words  first,  word  by  word,  and  to  let 
thee  say  the  words  after  him.  He  will  give  thee  leave,  and 
summon  himself  in  the  suit,  and  thou  shalt  summon  after  him 
there  and  then,  and  this  time  say  every  word  right.  When  it 
is  done,  ask  Hrut  if  that  were  rightly  summoned,  and  he  will 
answer,  '  There  is  no  flaw  to  be  found  in  it.'  Then  thou  shalt 
say  in  a  loud  voice,  so  that  thy  companions  may  hear, 
'  I  summon  thee  in  the  suit  which  Unna,  Mord's  daughter, 
has  made  over  to  me  with  her  plighted  hand.'  " 

The  advice  is  faithfully  carried  out,  and  Gunnar  "  repeated 
the  summons  a  second  time,  and  this  time  right,  and  called 
his  companions  to  witness  how  he  summoned  Hrut  in  a  suit 
which  Unna,  Mord's  daughter,  had  made  o\'er  to  him  with 
her  plighted  hand."  ' 

'  I  Dasent,  Buint  Njal,  ch.  xxii, 

Q 


226  HISTORY   OF   PROCEDURE. 

The  Norse  procedure  did  not  require  personal  summons 
in  divorce  cases.  In  the  suit  by  Unna  for  divorce  from  Hrut, 
the  plaintiff  is  instructed  by  her  father  to  proceed  as  follows, 
in  the  absence  of  her  husband,  upon  whom  she  has  practised 
a  pretty  deception  :  "When  men  ride  to  the  Thing,  and  after 
all  have  ridden  from  the  Dales  that  mean  to  ride  thither ; 
then  thou  must  rise  from  thy  bed  and  summon  men  to  go. 
along  with  thee  to  the  Thing  ;  and  when  thou  art  all-boun, 
then  shalt  thou  go  to  thy  bed,  and  the  men  with  thee  who 
are  to  bear  thee  company,  and  thou  shalt  take  witness  before 
thy  husband's  bed,  and  declare  thyself  separated  from  him  by 
such  a  lawful  separation  as  may  hold  good  according  to  the 
judgment  of  the  Great  Thing  and  the  laws  of  the  land  ;  and 
at  the  man's  door  [the  main  door  of  the  house]  thou  shalt 
take  the  same  witness.  After  that,  ride  away  "  to  the  Thing. 
"Into  his  hands  thou  shalt  never  come  more."  ^  The  advice 
is  implicitly  followed  ;  and  Unna  then  goes  to  the  Hill  of 
Laws  at  the  Althing,  and  declares  herself  separated  from 
Hrut.  This  was  a  valid  proceeding,  and  effectual  for  the 
purpose. 

It  has  been  said  that  in  suits  for  homicide  no  summoning 
of  the  defendant  was  necessary,  because  the  slayer,  guilty  of 
manslaughter  only,  had  openly  avowed  the  killing  as  soon  as 
it  had  been  done.^  Failing  to  do  this,  his  act  was  murder. 
The  reason  assigned,  however,  is  not  satisfactory,  since,  though 
the  slayer  had  confessed  the  act,  he  may  have  considered  it 
justifiable,  and  refused  to  make  compensation.  It  would  then 
be  necessary  for  the  next  of  kin  to  summon  him  to  the  Thing, 
unless  they  chose  to  take  vengeance.  The  avowal  of  the 
slaying  would  appear  to  have  affected  only  the  nature  of  the 
offence  and  the  guilt  of  the  slayer. 

The  proceedings  preliminary  to  the  trial  before  the  Al- 
thing are  related  in  two  cases  in  the  Njal-Saga,  first  in  the 
suit  for  Hauskuld's  slaying,  and  again  in  the  chief  suit  of  the 

'  Nial-Saga,  ch.  vii.  -  I  Dascnt,  Inlrod.  Burnt  Njal,  145,  note. 


SUMMONS.  227 

saga,  that  of  Mord  v.  Flosi,  for  the  slaying  of  Helgi,  Njal's 
son.  The  entire  record,  as  modern  lawyers  would  say,  is  set 
out  in  the  latter  case. 

The  first  step  taken  was  that  whereby  Helgi's  next  of  kin, 
Thorgeir,  Thorir's  son  (Njal  having  perished  in  the  burning 
of  his  house  in  the  same  general  catastrophe),  gave  over  the 
suit  to  the  lawyer  Mord.  "  Then  Mord  took  Thorgeir  by  the 
hand  and  named  two  witnesses  to  bear  witness  '  that  Thorgeir, 
Thorir's  son,  hands  me  over  a  suit  for  manslaughter  against 
Flosi,  Thord's  son,  to  plead  it  for  the  slaying  of  Helgi,  Njal's 
son,  with  all  those  proofs  which  have  to  follow  the  suit.  Thou 
handest  over  to  me  this  suit  to  plead  and  to  settle,  and  to 
enjoy  all  rights  in  it,  as  though  I  were  the  rightful  next  of 
kin.  Thou  handest  it  over  to  me  by  law,  and  I  take  it  from 
thee  by  law.'  "  i 

After  taking  witness  of  the  assignment  of  the  suit  to  him- 
self, Mord  calls  men  to  bear  witness  of  the  first  step  necessary 
in  every  suit  by  the  next  of  kin  for  homicide  ;  and  the  exact- 
ness of  the  formula  is  worthy  of  notice.  "  I  call  you  to  bear 
witness,"  said  he,  "  that  I  give  notice  of  an  assault  laid  down 
[i.e.  declared]  by  law  against  Flosi,  Thord^s  son,  for  that  he 
dealt  Helgi,  Njal's  son,  a  brain,  or  a  body,  or  a  marrow  wound, 
which  proved  a  death  wound  ;  and  from  which  Helgi  got  his 
death.  I  give  notice  of  this  before  five  witnesses."  Here  he 
names  them  all.  "  I  give  this  lawful  notice.  I  give  notice  of 
a  suit  which  Thorgeir,  Thorir's  son,  has  handed  over  to  me." 

Again  he  named  men  to  "  bear  witness  that  I  give  notice 
of  a  brain,  or  a  body,  or  a  marrow  wound  against  Flosi,  Thord's 
son,  for  that  wound  which  proved  a  death  wound,  but  Helgi 
got  his  death  therefrom  on  such  and  such  a  spot,  when  Flosi, 
Thord's  son,  first  rushed  on  Helgi,  Njal's  son,  with  an  assault 
laid  down  by  law.  I  give  notice  of  this  before  neighbours  " — 
naming  them — "  I  give  this  lawful  notice.  I  give  notice  of  a 
suit  which  Thorgeir,  Thorir's  son,  has  handed  over  to  me."^ 

'  Njal-Saga,  ch.  cxxxiv.  (Dasenl).  -  lb.  ch.  cxxxiv. 

Q    2 


228  HISTORY   OF   PROCEDURE. 

This  notice  of  suit  is  taken  before  neighbours  on  the  spot 
where  the  deceased  lay,  with  the  body  exhumed.  The  next 
step  is  to  summon  the  neighbours  to  give  their  verdict  at  the 
Althing;  the  number  of  whom  was  to  be  not  less  than  five  nor 
more  than  nine.  Beginning  as  before,  and  as  always,  Mord 
again  calls  men  "  to  bear  witness  that  I  summon  these  nine 
neighbours  who  dwell  nearest  the  spot  " — naming  them  all — 
"  to  ride  to  the  Althing  and  to  sit  on  the  inquest  to  find 
whether  Flosi,  Thord's  son,  rushed  with  an  assault  laid  down 
by  law  on  Helgi,  Njal's  son,  on  that  spot  where  Flosi,  Thord's 
son,  dealt  Helgi,  NjaFs  son,  a  brain,  or  a  body,  or  a  marrow 
wound,  which  proved  a  death  wound,  and  from  which  Helgi 
got  his  death.  I  call  on  you  to  utter  all  those  words  which 
you  are  bound  to  find  by  law,  and  which  I  shall  call  on  you  to 
utter  before  the  court,  and  which  belong  to  this  suit.  I  call 
upon  you  by  a  lawful  summons ;  I  call  upon  you  so  that  ye 
may  yourselves  hear;  I  call  upon  you  in  the  suit  which 
Thorgeir,  Thorir's  son,  has  handed  over  to  me."  i 

The  same  formula  is  repeated  with  the  variation  used  in 
the  second  notice  of  the  suit  ;  to  wit,  putting  the  wounds 
first  and  the  assault  second.^  Thus  is  the  suit  set  on  foot  and 
made  ready  for  proceedings  before  the  court.  At  this  stage 
the  cause  must  be  dropped  for  the  present. 

'  Njal-Saga,  cli.  cxxxiv,  ^  Ibid. 


CHAPTER   VII. 

THE   ISSUE   TERM. 

In  ordinary  cases  arising  under  the  ancient,  popular  proce- 
dure— excepting  the  prosecution  of  criminals  c'a.w^^.  flagrante 
delicto,  and  (by  tlie  laws  of  Henry  the  First)  of  theft,  murder, 
treason,  robbery,  outlawry,  house-breaking,  arson,  counter- 
feiting, and  capital  crimes  generally,  in  which  cases  the  ac- 
cused was  to  be  put  upon  trial  at  once,  without  even  counsel ' 
— a  litigation  passed  through  two  stages,  each  requiring  a 
distinct  term. 2  At  the  first  term  the  pleadings  were  con- 
ducted to  an  issue,  followed  by  the  medial  or  proof  judgment, 
addressed  to  the  final  test  or  verdict,  and  by  the  giving  of 
security  to  furnish  the  required  proofs.  At  the  second  term 
the  test  was  undergone  or  the  verdict  given,  supposing  the 
party  or  parties  to  have  fulfilled  the  terms  of  the  pledge  of 
security. 

Cases  arising  under  the  recognitions  of  the  latter  half  of 
the  twelfth  century,  including  also  the  occasional  examples  of 
the  same  mode  of  trial  from  the  time  of  the  Conqueror  to 
Stephen,  were  peculiar.  The  medial  judgment,  instead  of  being 
declared  by  the  court,  was  virtually  declared  in  advance,  by 
the  king's  writ.     This  was  always  the  case  in  the  distinctive 

'  Laws  Hen.  I.   c.  47.     Counsel  was  allowed  in  other  cases.     lb.  c.  48,  §  i  ; 
c.  49,  g  I  ;   c.  61,  g  17  ;  a)!tc,  p.  218,  n.  3.  -  Comp.  ilx  c.  61,  §  19. 


230  HISTORY   OF   TROCEDURE. 

recognitions  of  Glanvill.  liut  tlic  writ  was  granted  on  ex 
parte  applieation,  as  in  the  modern  times  ;  the  question  (vir- 
tually) submitted  to  the  reeognitors,  therefore,  not  arising  upon 
the  pleadings  and  issue.  And  when  the  cause  came  on  for  the 
pleadings,  the  result  might  be,  or  rather,  if  pleadings  were 
then  had,  it  always  was,  an  entirely  different  issue  from  that 
implied  in  the  writ ;  in  which  case  the  writ  and  recognition 
were  dropped,  as  we  have  scen,i  and  the  cause  then  went  on 
as  in  other  cases.  The  court  declared  the  medial  judgment, 
security  was  (it  seems)  newly  given, ^  and  the  final  trial  came 
off  at  the  next  term.  When,  however,  no  pleadings  were  had, 
the  recognition  proceeded  to  a  verdict  at  the  same  term  in 
which  the  pleadings  would  have  been  heard  if  undertaken. 
There  was  thus  but  one  term  for  causes  tried  by  this  form  of 
action  ;  unless  the  day  set  for  the  election  of  the  recognitors, 
to  which  the  tenant  was  to  be  summoned,  and  at  which  security 
of  prosecution  was  first  to  be  given  by  the  demandant,  is  to 
be  treated  as  a  term. 

Supposing  a  general  term  of  court  to  have  arrived,  the 
hearing  of  plaint  and  plea  in  common  causes  between  suitors 
was  preceded  or  accompanied  by  the  hearing  of  essoins. 
These  were  excuses  of  various  kinds  sent  to  the  court  for 
failure  to  appear  in  answer  either  to  the  general  summons  of 
the  community,  hundred,  or  county,  or  to  the  special  summons 
by  a  plaintiff  The  most  of  them  were  such  as  to  be  classed 
under  the  following  heads  :  i.  De  servitio  regis.  2.  InTerram 
Sanctam.  3.  De  ultra  mare.  4.  De  malo  lecti.  5.  De  malo 
veniendi.  The  last  two  are  often  called  by  Glanvill,  Ex 
infirmitate  de  reseantisa  and  Ex  infirmitate  veniendi. 

Actual  examples  of  these  essoins  may  be  found  almost  with- 
out number  in  the  (published)  Rotuli  Curi;e  Regis  of  the  sixth 

'  Ante,  pp.  171,  172. 

'  Secvirity  of  prosecution  had  originally  been  given  by  the  plaintiff  as  a  con- 
dition to  his  having  a  recognition.     The  new  security  would  be  to  perform  the 

requirement  of  tlie  medial  judgment. 


THE    ISSUE   TERM.  231 

and  tenth  years  of  Richard  the  First  and  the  first  year  of  John. 
They  are  there  given  in  extensive  groups.  Thus,  in  the  sixth 
year  of  Richard  essoins  were  taken  at  Westminster  on  the 
thirteenth  of  October,  fiUing  four  pages  of  the  printed  text,' 
immediately  following  which  are  essoins  of  the  fifteenth  of  the 
same  month,  occupying  nearly  a  page.  On  the  twentieth  of 
the  month  essoins  were  taken  which  occupy  the  two  following 
pages.  On  the  twenty-seventh,  directly  following  in  the 
Rotuli,  are  nearly  four  pages  of  like  proceedings.  Seven  pages 
of  essoins  are  of  the  third  of  November,  followed  by  nearly 
two  pages  of  the  sixth  of  that  month.  Then  upon  the  ninth, 
tenth,  eleventh,  and  twelfth  of  the  same  month,  essoins  follow, 
occupying  more  than  six  pages.  After  this  they  continue  on 
different  days  until  the  seventh  of  December,  occupying  in  all 
forty-two  continuous  pages. 

The  following  will  serve  as  specimens  :  Henry  de  P.  essoins 
himself  de  malo  lecti  upon  the  third  day  (of  the  term  appointed) 
before  a  plea  at  D.,  in  Yorkshire,  against  Brian,  son  of  Ralph, 
of  a  plea  of  land,  by  (his  messengers)  John  de  C.  and  Hudard 
de  D.  Four  knights  are  then  sent  (to  ascertain  the  facts),  and 
if  there  be  no  illness  ("  languor  "),  then  let  him  be  at  West- 
minster on  the  Sabbath  next  after  the  feast  of  St.  Edmund, 
one  month  hence.  2  Peter  of  F.  puts  in  his  place  (as  his 
attorney)  Walter  de  F.,  who  essoins  himself  (i.e.  Walter 3)  de 
malo  veniendi  against  Ralph  de  R.  of  a  plea  of  land  by  (his 
messenger)  Adam  de  R.,  and  Ralph  (the  other  party,  demandant 
or  tenant)  puts  in  Jiis  place  Elias  for  hearing  his  day  ;  pledges 
being  given  in  the  octaves  of  All  Saints.  Roger,  son  of  R., 
essoins  himself  de  malo  veniendi  against  William  de  P.  of  a 
plea  of  warranty  of  land,  by  Walter  de  C.  Andrew  de  C.  essoins 
himself  de  malo  veniendi  against  the  prior  of  M.  of  a  plea  of 
rent,  by  Roger  de  M.      Reginald  H.  essoins   himself 4 

'  I  Rotuli  Cur.  Reg.  pp.  95-99. 

'  lb.  95.     The  other  cases  referred  to  immediately  follow. 

3  Glanvill,  lib,  11,  c.  3,  §  l.  "■  Sic. 


232  HISTORY   OF   PROCEDURE. 

de  malo  veniencH  against  Gilbert  de  C.  and  Matilda  de  M. 
of  a  plea  of  appeal,  by  Matthew,  son  of  R.,  and  a  day  is  given 
them  (to  appear)  on  the  morrow  of  All  Saints  at  Westminster. 
Richard  dc  E.  essoins  himself  de  malo  vcniendi  against 
William  13.  of  a  plea  of  land,  by  Ralph  Ix  Philip  M.  essoins 
himself  de  malo  veniendi  against  Robert  de  H.,  by  Walter 
de  B.  (and  day  is  given  him)  on  the  morrow  of  All  Saints  at 
Westminster.  Walter  de  F.  (essoins  himself)  de  malo  veniendi 
against  Milo  {?)  and  Milo  of  St.  M.  and  Ralph  of  St.  M.  of 
an  appeal,  by  William  Ic  F.,  and  pledges  are  given  (to  prose- 
cute) at  the  octaves  of  All  Saints.  Hugh  M.  (essoins  himself) 
de  malo  veniendi  against  the  same  persons,  by  Robert,  son  of 
R.,  and  pledges  are  given  for  the  same  term  at  Westminster. 
Thomas  de  S.  (essoins  himself)  of  the  same  against  the  same 
persons,  by  William,  son  of  R.  Pledges  given  for  the  same 
term  at  Westminster.  Richard  de  H.  (essoins  himself)  de 
malo  veniendi  against  Walter,  son  of  E.,  of  a  plea  of  land,  by 
William  de  N.  Pledges  given  (for  trial)  in  the  octaves  of  All 
Saints.  Ralph  de  P.  (essoins  himself)  dc  malo  veniendi  against 
Robert  E.  of  a  plea  of  land,  by  Adelstan  de  W.  Pledges 
given  (for  trial)  on  the  morrow  of  All  Saints  at  Westminster. 
Odo  de  K.  (essoins  himself)  de  malo  veniendi  against  Geoffrey 
de  C.  of  a  plea  of  land,  by  John  de  M.  and  Pagan  de  M.,  and 
awaited  an  essoin  until  the  fourth  day,  and  Geoffrey  came  not 
nor  essoined  himself,  and  he  was  the  demandant.  Judgment 
that  Odo  go  without  day,  and  let  Geoffrey  have  such  recovery 
as  he  ought  to  have  ("  et  Gaufridus  habeat  talem  recuperacio- 
nem  qualem  habere  debet ").  Reginald  de  A.  (essoins  himself) 
that  he  is  in  the  king's  service  at  Canterbury,  against  Thomas 
de  B.  of  a  plea  of  homage,  by  Turstan  le  V.,  and  Thomas 
essoins  himself  dc  malo  veniendi  against  the  same  (Reginald), 
by  William  H.  Pledges  in  respect  of  the  essoin  to  be  at 
Westminster  on  the  morrow  of  All  Saints. 

The    foregoing   essoins   are   given    as    they  stand   in  the 
Rotuli,   without  omission.     The  following  are  selected  from 


THE    ISSUE   TERM.  233 

those  of  the  same  year,  as  of  some  special  interest  in  the  study 
of  the  proceedings  of  the  courts  generally,  as  well  as  of 
essoins:  William  de  K.  (essoins  himself)  de  malo  veniendi 
against  Herbert  de  St.  O.  of  a  plea  of  appeal,  by  Ralph  de  F. 
A  day  is  given  them  in  the  octaves  of  All  Saints.  And 
Stephen  de  F.  and  Robert  de  D.  were  of  the  same  appeal, 
and  came  not  nor  essoined  themselves,  and  they  were  attached 
by  their  pledges  (given  at  a  previous  term,  to  bring  their 
proofs  or  to  establish  their  defence  otherwise).  And  it  was 
considered  that  Stephen  and  Robert  be  taken,  so  that  they 
might  be  there  at  the  said  term.  And  so  the  sheriff  was  com- 
manded.'  Osbert  de  L.  essoins  himself  de  malo  veniendi 
against  the  abbot  of  B.  of  a  plea  of  taking  his  chiro- 
graph (fine  and  concord),  by  Jordan  de  L.2  Cecilia  de  M.  de 
malo  veniendi  against  the  brethren  of  the  Temple  of  a 
plea  of  land,  by  Walter  ....  of  the  Temple,  and  the 
brethren  came  not  nor  essoined  themselves,  and  they  were 
the  plaintiffs  ;  and  she  waited  for  an  essoin  until  the  fourth 
da}\  Judgment  that  Cecilia  go  without  day,  and  the 
templars  have  such  recovery  as  they  ought  to  have.-'  Peter 
B.  de  malo  veniendi  against  Christina,  who  was  wife  of 
William,  of  a  plea  of  dower,  by  Ralph,  son  of  T.  Pledges 
given  (to  be  in  court)  on  the  next  Lord's  day  after  the  feast 
of  St.  Luke  the  Evangelist  in  fifteen  days.4  Nicholas  de  F. 
de  malo  veniendi  against  Robert  de  F.  of  a  plea  of  appeal,  by 
Robert,  son  of  R.  And  the  abbot  of  St.  Edmund  sought  his 
court  thence  (that  is,  claimed  jurisdiction  of  the  cause)  at  an 
hour  and  term  (named).  Day  is  given  them  in  the  octaves  of 
St.  Hilary  at  Westminster. 5  Hugh  de  L.  de  malo  veniendi 
against  the  friar  of  L.  of  a  plea  of  presentation  of  a  certain 
church,  by  R.  le  M.  Pledges  given  (to  be  in  court)  at  the 
vigil  of  Sts.  Simon  and  Jude  in  fifteen  days.6     William  de  L. 


"   I  Rotuli  Cur.  Reg.  98.     This  appears  to  be  a  stage  of  the  case  of  Hubert  v. 
Stephen,  Placita  Ang.-Norm.  2S5  ;  i  Rotuli,  38  ;  post,  near  the  end  of  this  cliapter. 
"  lb.  99.  ^  Ibid.  -t  lb.  100.  5  lb.  102.  *  lb.  103. 


234  HISTORY   OF   PROCEDURE. 

essoins  himself  on  the  third  day  before  a  plea  de  malo  Iccti  at 
M.  W.  against  Hubert  de  H.,  of  a  plea  of  ivarrantia  carta:, 
by  Alard  R.  and  Clement  de  B.'  Hamo,  son  of  H.,  de  malo 
de  ultra  mare,  that  he  is  in  the  service  of  the  king,  against 
Mabel  de  la  W.,  of  a  plea  of  dower,  by  Roger,  son  of  W.,  and 
R.  Considered  that  the  land  be  taken  into  the  king's  hand 
then,  and  Hamo  be  summoned  to  be  at  Westminster  on  the 
morrow  of  St.  Andrew.^  Alan,  cleric  de  H.,  essoins  himself 
de  malo  vcniendi  against  John  de  G.  and  Anneis  his  wife,  of 
a  plea  of  a  charter,  by  Amiot  le  P.  (Alan),  not  having  a  writ  (of 
summons).  Summons  was  proved  by  Richard  de  W.  and 
William  de  S.,  and  they  (John  and  his  wife)  came  not  nor 
essoined  themselves.^  William  de  B.  de  malo  veniendi  against 
Hugh  de  C,  of  his  judgment  and  record,  by  Geoffrey  de  B. 
"  In  itinere."-^  Walter  H.,  on  the  third  day  before  a  plea,  de 
malo  Iccti  at  B.,  against  John  de  B.  and  Richard,  son  of  G.,  by 
John  de  C,  and  Osbert,  son  of  H.  Considered  that  there 
was  no  (good)  essoin,  nor  could  he  say  any  more  why  the 
assise  ought  to  stop.  Recognition  summoned  to  be  (heard) 
at  Westminster  on  the  feast  of  St.  Martin  in  fifteen  days.^^ 
Gilbert  M.  de  malo  lecti,  on  the  third  day  before  a  plea  at  S., 
against  Cecilia  de  H.  and  Robert,  her  champion,  of  a  plea  of 
the  duel,  by  Roger  C.  and  Geoffrey  M.  Considered  that  there 
was  no  essoin  because  of  breach  of  the  king's  peace,  and 
Cecilia  has  a  writ  to  the  sheriff  to  have  the  said  Gilbert  at 
Westminster  to  make  his  duel  at  the  feast  of  St.  Martin  in 
fifteen  days,  and  that  he  have  the  pledges  of  the  said  Gilbert 
then  there  for  hearing  their  judgment  why  they  had  not  the 
man  whom  they  pledged.*^  William  C.  de  malo  veniendi  of  a 
plea  of  land,  against  Luke  de  C,  by  Roger,  son  of  W.,  and 
Luke  was  plaintiff,  and  he  (William)  waited  for  an  essoin  his 
fourth  day.  Let  William  go  without  day,  and  Luke  have 
such  recovery  as  he  ought  to  have.7     Thomas  de  T.  de  malo 

»  I  Rotuli  Cur.  Reg.  io6.  -  lb.  io8.  3  ibid.  -t  lb.  109. 

5  lb.  no.  <'  Ibid.  ^  lb.  iii. 


THE    ISSUE    TERM.  235 

veniendi  against  Ralph  M.,   of  a  pica  of  imprisonment,  by 
Hugh  T.    Ordered  that  the  sheriff  cause  four  men  of  the  town 
of  Oxford  to  come  and  answer  why  the  citizens  did  not  come 
at  the  day  given  them  in  bank,  and  that  Thomas  then  be 
there,  on  the  morrow  of  St.  Martin  in  fifteen  days.i     Margaret, 
daughter   of  W.,    essoins   herself  de   malo    veniendi  against 
Theobald  W.,  of  a  plea  of  marrying  without  license,  by  Brown 
de  S.~      Master  John  C.  essoins   himself  de  malo  veniendi 
against  Emma  de  C,  of  a  plea  of  dower,  by  Gerard,  son  of  G. 
Without  day,  because  Emma  had  not  her  warranty,  and  con- 
sidered that  she  (still)  have  it  if  she  wish.^      Robert  of  St. 
John  de  malo  veniendi  against  Richard,  son  of  R.  de  T.,  of  a 
plea  of  land,  by  Richard  T.    Pledges  given  (to  be  in  court)  on 
the  next  Lord's  day  before  Natale  at  Westminster,  and  Olive, 
wife  of  Robert  of  St.  John,  came  and  said  that  neither  she  nor 
her  lord  was  summoned  except  in  the  vigil  of  St.  Edmund, 
and  that  the  summons  was  not  legal.      Considered  that  the 
sheriff  be  summoned  to  be  at  the  said  term  at  Westminster  to 
answer  concerning  that  summons.4     Hugh,  son  of  W.,  essoins 
himself  against  William  W.,  of  the  church  of  St.  Mary,  of  a 
plea  of  the  separation  of  the  chapel  of  C.  from  the  mother 
church  of  H.,  by  Roger  D.s     The  abbot  of  Thorney  de  malo 
veniendi  against  William  de  C.,  of  a  plea  of  the  repair  of  the 
bridge  of  Huntingdon,  by  Robert  de  S.6    Master  Henry  de  L. 
essoins  himself  de  malo  lecti  on  the  day  before  a  plea  of 
appeal  at  Winton,  against  Juliana  and  Robert,  her  husband, 
of  a  plea  of  land,  by  Richard  W.  and  Hugh,  their  man.     No 
(good)  essoin,  and  ordered  that  the  sheriff  have  him  on  the 
day  of  St.  Hilary  in  fifteen  days  at  Westminster  to  hear  his 
judgment,  and  put  his  surety  in  pledge  that  he  be  at  the  said 
term  to  show  why  he  had  not  the  man  whom  he  pledged. 7 
William  de  B.  essoins  himself  de   malo  lecti   on    the   third 
day   before  a  plea  of  appeal  at    M.,  against    Christiana  D. 

'   I  Rotuli  Cur.  Reg.  112,  ''  lb.  114.  3  ib.  126.  ^  lb.  127. 

5  Ib.  132.  ^  Ibid,  7  lb.  133. 


236  HISTORY   OF   PROCEDURE. 

of  a  pica  of  dower,  by  Richard  dc  B.  and  Ralph  de  B.,  and  the 
land  was  taken  into  the  king's  hand  on  the  day  of  St. 
Catherine,  by  default  of  the  said  William,  and  Hugh  de  E.  (?) 
and  H.  (?)  came  at  an  hour  and  sought  it.  Let  him  have  it 
by  replevin,  and  answer  to  Christiana,  and  let  the  said 
Christiana  have  seisin  "  de  parte  Willelmi."'  John  de  S.  de 
malo  veniendi  against  John  de  F.,  of  a  plea  of  appeal,  by 
Geoffrey  de  B.  Pledge  given  (to  be  in  court)  on  the  day  of 
St.  Hilary  in  fifteen  days,  and  John  de  S.,  the  appellor,  came  • 
not  nor  essoined  himself,  and  John,  the  appellee,  waited  his 
fourth  day.  Judgment  that  John  (de  F.)  go  without  day,  and 
John  de  S.  be  in  mercy. 2 

The  foregoing,  it  w^ill  be  observed,  arc  all  essoins  in  actual 
causes.  The  essoins  for  failure  to  answer  tlie  general  summons 
of  the  community  are  very  few  as  compared  with  the  other 
class  ;  the  meaning  of  which  most  likely  is,  that  the  absence 
of  ordinary  freemen  could  scarcely  be  noticed,  rather  than  that 
almost  every  freeman  of  the  district  was  present.-^  The 
following  are  the  essoins  of  the  same  year  for  non-attendance 
upon  general  summons :  William  de  V.  de  malo  veniendi 
against  the  court,  of  common  summons,  by  Ralph  de  C.  and 
Richard  dc  L.4  The  abbot  of  Croiland  de  malo  veniendi 
against  the  court,  of  common  summons,  by  Nicholas  de  C.^ 
Adam  de  B.  de  malo  veniendi  against  the  court,  of  common 
summons,  by  William,  son  of  R.,  and  William  C.^  Robert  de 
C.  de  malo  veniendi  against  the  sheriff,  of  a  plea  of  summons.7 

'  I  Rotuli  Cur.  Reg.  134.     The  MS.  is  obscure  as  to  some  of  the  words. 

=  lb.  136. 

'  It  may  well  be  doubted  whether  there  was  anything  like  universal  attendance 
of  the  freemen  throughout  the  sessions  of  the  Folkmot.  Agriculture  and  business 
generally  would  be  jeopardised  too  much  to  require  it.  The  people  may  have 
generally  attended  the  first  day  or  two  :  the  law  could  hardly  have  required  more 
than  that,  except  of  parties  litigant.  The  above-given  essoins,  it  must  be  remem- 
bered, are  of  the  royal  courts ;  but  if  parties  were  so  largely  absent  from  those 
courts,  what  might  be  expected  of  general  attendance  at  the  Folkmots  ?  Fines  im- 
posed for  leaving  court  without  license,  however,  imjDly  a  requirement  to  remain  at 
court ;  but  permission  to  depart  or  to  stay  away  was  obtainable. 

^  lb.  104.  5  Ibid.  '  Ibid.  ?  lb.  112. 


THE    ISSUE   TERM.  237 

There  are  also  t\vo  essoins  simply  "  against  the  court,"  one  by 
a  certain  viewer  ("quidam  visor"),'  the  other  by  an  essoiner,^ 
without  stating  whether  in  answer  to  general  or  special 
summons,  and  one  sent  against  the  court  from  master  Herbert 
"de  lege  sua  facienda."^ 

The  examples  quoted  show  that  persons  summoned 
specially  as  defendants  were  bound,  upon  the  non-appearance 
of  the  adverse  party,  to  wait  until  the  fourth  day  after  the 
appearance-day,  if  they  would  save  themselves  from  difficulty. 
If  they  left  the  court  before  that  day,  the  plaintiff  might  appear 
within  the  time  and  then  have  the  defendant  put  in  mercy  for 
a  default.  If  the  plaintiff  did  not  appear  within  the  four  days, 
the  defendant  was  entitled  to  go  sine  die  ;  and  if  the  plaintiff 
had  failed  to  send  an  essoin  within  the  time,  he  was  to  be 
amerced.  The  effect  of  the  essoin,  it  may  be  added,  was  not 
unlike  that  of  a  motion  at  the  present  day  for  a  continuance. 
It  was  allowed  either  party,  and  resulted  in  postponing  the 
cause  ;  but  each  essoin  by  the  defendant  was  to  be  followed 
by  a  new  summons. 

The  number  of  essoins  allowed  by  law  before  a  party  could 
proceed  directly  with  his  cause  was,  in  the  royal  courts,  a 
point  of  great  nicety,  not  to  say  of  vexation.  In  the  popular 
courts  of  England  there  appear  to  have  been  no  fixed  limits 
to  the  number  of  lawful  essoins.  Nothing  short  of  the  king's 
writ  (or  possibly  a  judgment  of  the  court)  appears  to  have 
been  sufficient  to  put  an  end  to  them,  so  long  as  they  were 
proved  true  and  were  individually  good.  Causes  in  the 
popular  courts  were  by  means  of  essoins  sometimes  post- 
poned a  most  unreasonable  length  of  time.  Even  the  king's 
ordinary  writ  was  not  sufficient  to  limit  them.  In  the  case  of 
the  Abbot  of  Abingdon  v.  Turstin^  the  king  had  "  once  and 
again "  directed  the  trial  of  an  alleged  wrongful  disseisin 
before  his  sheriff  of  Berkshire  in  the  County  Court.     But  the 

'  I  Rotuli  Cur.  Reg.  105.  -  lb.  113.  3  ib.  98. 

■♦  Placita  Ang.-Norm.  167,  169. 


238  HISTORY   OF    PROCEDURE. 

defendant,  says  the  record,  conscious  of  his  guilt,  "  feigning 
now  the  king's  business,  now  this  and  now  that  occasion, 
craftily  eluded  the  county  for  upwards  of  two  years."  The 
case  of  Richard  de  Anesty  v.  Mabel  de  Franchevillei  is  still 
more  remarkable.  The  number  of  apparently  vexatious 
essoins  and  delays,  with  changes  of  venue  and  appeals  to  the 
pope,  covering  a  period  of  five  years,  is  bewildering,  if  not 
incomprehensible.  To  put  an  end  to  this  sort  of  vexatious 
manceuvring  a  peremptory  writ  of  the  king,  ordering  the 
party  to  appear  and  plead  without  further  delay,  was  some- 
times required.  In  ordinary  cases,  however,  there  was  probably 
very  little  difficulty  of  this  kind,  owing  to  the  privilege  had  by 
the  adverse  party  of  making  inquiry,  through  men  sent  by  the 
court,  into  the  truthfulness  of  the  excuses  furnished,  and  of 
treating  the  party  as  in  contumacy,  if  they  Avere  false,  in  case 
he  did  not  now  at  once  appear. 

In  the  King's  Courts  the  essoins  came  to  an  end  at  the 
furthest  with  the  third  excuse.  If,  on  the  expiration  of  the 
third  term  -  set,  each  with  its  four  days  from  the  appearance- 
day  named,  the  party  failed  to  appear  in  person  or  to  send  an 
attorney,  the  court  ordered  that  he  be  required  to  come  in 
person  on  another  day,  or  send  a  fit  attorney  to  gain  or  lose 
for  him.  If  he  appeared  at  the  fourth  term,  he  was  then  to 
prove  the  truth  of  each  previous  essoin  by  the  oath  of  himself 
and  another,  and  on  the  same  day  m.ake  answer  to  the  suit. 
If  he  did  not  appear  at  the  fourth  term,  in  person  or  by 
attorney,  the  tenement  (supposing  the  suit  were  for  the  re- 
covery of  land)  was  to  be  taken  into  the  king's  hand,  whence 
it  could  only  be  taken  by  appearance  within  fifteen  days, 
exculpation  of  default,  and  replevin.  The  cssoincrs  by  whom 
the  party  reported  his  excuses  to  the  court,  were  at  the  same 
time  to  be  taken  as  in  default,  and  detained  by  the  sherifi"; 

'  Placita  Ang.-Xonn.  311. 

*  The  word  "term"  ("terminus")  commonly  meant,  at  this  time,  simply  a 
(lay  appointed,  rather  than  the  general  session  of  the  court. 


THE    ISSUE   TERM.  239 

a  writ  ill  the  nature  of  the  later  writ  of  deceit  being  issued 
against  them. 

Supposing,  still,  a  suit  about  land,  the  premises  were  now 
to  remain  in  the  king's  hand,  as  has  been  intimated,  for  fifteen 
days,  unless  the  defendant  appeared  and  replevied  them  in 
the  meantime;  but  if  within  that  time  he  did  not  appear, 
seisin  was  to  be  adjudged  to  the  plaintiff.  The  judgment 
did  not,  however,  prevent  the  losing  party  from  suing  out  a 
writ  of  right,  and  trying  the  title  to  the  land.  And  if  within 
the  fifteen  days,  the  defendant  appeared  in  court  and  desired 
to  replevy  the  premises,  he  Avas  to  be  commanded  to  appear 
at  a  fourth  term  and  have  justice  there.  If  he  appeared  in 
accordance  with  the  order,  and  found  pledges  to  abide  by  the 
judgment  to  be  rendered,  he  was  to  have  seisin  again.  The 
party  might  then  deny  all  the  summonses  and  essoins,  or 
he  might  acknowledge  the  first  summons  and  warrant  the 
three  essoins,  and  save  the  fourth  term  by  the  king's  writ 
of  warranty. 

Such  was  the  intricate  course  of  procedure  concerning 
essoins  in  the  King's  Court  in  a  writ  of  praecipe,  as  set  out 
in  the  first  book  of  Glanvill's  treatise  ;  and  to  add  to  the 
annoyance,  an  essoiner  was  himself  permitted  to  send  an 
essoin,  of  which  we  have  seen  examples. 

In  the  recognition  of  mort  d'ancestor  the  tenant  might 
essoin  himself  twice,  but  no  more ;  on  the  arrival  of  the  third 
term  set,  the  recognition  could  be  taken  regardless  of  the 
absence  of  the  defendant.  In  no  recognition  where  seisin 
alone  was  in  question  were  more  than  two  essoins  allowed. 
In  the  recognition  of  novel  disseisin  no  essoin  was  permitted  ; 
but  before  proceedings  could  be  had  under  the  writ,  the  de- 
fendant must  have  been  summoned  on  two  different  days. 
On  the  third  day  the  recognition  was  taken. ' 

If  a  minor  prayed  a  recognition  of  any  kind  against  a 
person  of  full  age,  the  defendant  was  denied  an  essoin  ;  and 
'  Glanvill,  lib.  13,  c.  7, 


240  HISTORY   OF   PROCEDURE. 

the  recognition  proceeded  upon  the  first  day  appointed  by 
the  summons,  ^vhethcr  the  defendant  appeared  or  not  ;^  unless, 
indeed,  he  appeared  and  pleaded  some  matter  in  derogation 
of  the  recognition.  But  if  the  case  were  reversed,  and  a  re- 
cognition sought  by  an  adult  against  a  minor,  the  latter  might 
avail  himself  of  the  right  to  essoins  in  the  usual  manner.^ 

Another  important  branch  of  the  proceedings  of  the 
term  was  the  fixing  of  amercements.  The  Rotuli  Curiae 
Regis  of  Richard  the  First  contain,  under  the  title  Placita 
Corona-%  a  great  number  of  examples.  The  following 
Amercements  of  Hertford-^  may  be  quoted  to  show  the  nature 
of  the  fines  commonly  imposed :  Hundred  of  Hodesdon 
(amerced)  in  one  mark  for  murder,  liberties  (i.e.  franchise) 
excepted.  Land  of  the  hospital  in  R.  (amerced),  half  a 
mark  for  the  flight  of  Ralph,  a  rustic.  William  de  M.,  half 
a  mark  because  he  did  not  have  (in  court)  the  man  whom 
he  had  pledged.  Hundred  of  Hertford,  twenty  shillings  for 
murder,  liberties  excepted.  The  frankpledge  of  Richard 
C.  de  S.,  half  a  mark  because  it  had  not  the  man  whom  it 
had  pledged.  Askill  B.,  half  a  mark  for  wine  sold  contrary  to 
the  assise.  The  town  of  Hodesdon  (being)  land  of  Alan  de  B., 
half  a  mark  for  the  flight  of  Ernold,  son  of  H.  The  town  of 
Aldeham,  one  mark  for  the  flight  of  Simon  and  Edmund,  his 
brother.  The  frankpledge  of  Odo  de  L.,  half  a  mark  for  the 
flight  of  Walter  (the)  Cook.  The  town  of  Munden  le  F.,  one 
mark  for  the  flight  of  Callus  de  M.  The  hundred  of  B.,  one 
mark  for  murder,  liberties  excepted.  The  frankpledge  of 
Adam  B.,  half  a  mark  for  the  flight  of  the  said  Adam.  Then 
follow  amercements  of  fourteen  persons  for  wine  sold  contrary 
to  the  assise  ;  after  which:  Geoffrey  de  la  M.,  half  a  mark  for 
a  dyke  unjustly  raised.  Gerard  de  F.  was  to  be  amerced  at 
the  Exchequer  for  a  disseisin.  Richard,  son  of  W.,  half  a  mark 
for  a  disseisin.  Walter  de  H.,  half  a  mark  for  a  disseisin. 
Henry,  merchant  of  St.  Albans,  half  a  mark  for  an  unjust  sale 

■  Glanvill,  lib.  13,  c.  12.  •  Ibid.  ^  i  Rotuli  Cur.  Reg.  168. 


THE    ISSUE   TERM.  241 

of  bread.  Richard  de  F.,  half  a  mark  because  he  did  not 
prosecute  his  suit.  Robert  clcrc  de  P.  de  T.,  half  a  mark  for 
a  disseisin.  Alan,  son  of  G.,  half  a  mark  for  a  default. 
Reginald  de  A.  to  be  amerced  at  the  Exchequer  for  a  dis- 
seisin, in  one  hundred  marks.  The  county,  in  sixty  marks  for 
discharge  from  carucage  and  hidage.  Among  the  amerce- 
ments of  Essex  are  fines  imposed  upon  eight  tithing  men  and 
their  decennaries  for  flights. ^  Ralph  de  A.  was  amerced  in  a 
mark  for  a  false  clamor.  Christopher  de  B.,  in  half  a  mark  for 
leaving  court  without  license.^ 

The  regularity  of  these  amercements  In  amount  is  notice- 
able. However  dissimilar  the  offences,  the  normal  fine  im- 
posed is  half  a  (silver)  mark  ;  and  the  variance,  it  may  be 
presumed,  was  caused  by  the  special  circumstances  of  the 
particular  case. 

Besides  amercements  for  matters  within  the  immediate 
notice  of  the  Eyre,  some  of  the  foregoing  examples  show  that 
there  were  cases  brought  to  the  notice  of  the  justiciars  from 
without.  This  was  partly,  if  not  mainly,  done  by  jurors 
chosen  through  the  hundreds,  as  was  provided  in  the  agenda 
of  1 194;  the  reports  being  commonly  given  first  under  the 
same  head  of  Placita  Coronae.  The  Rotuli  contain  many 
examples  ;  of  which  the  following  of  the  tenth  year  of  Richard 
the  First  fairly  represent  the  whole  :  Hundred  of  Odesey.^  The 
jurors  say  that  John,  son  of  L.,  and  Alice,  daughter  of  S. 
were  drowned  in  the  mill-pond  of  E.  And  Englishry  was  not ' 
reasonably  presented.  (Judgment)  murder.  The  same  jurors 
(say)  that  a  certain  woman  was  found  dead  in  the  fields  of 
E.,  and  it  is  not  known  who  she  was,  and  no  one  is  accused 
thereof.  Judgment,  murder.  The  same  say  that  malefactors 
slew  William  (the)  Smith  in  his  house  at  S.,  and  bound  his 
son  Richard  and  wounded  A.  and  A.,  and  it  is  not  known  who 
did  it.  And  Englishry  was  not  presented.  Judgment,  murder. 
In  the  fields  of  C.  a  certain  man  was  found  slain,  and  it  is  not 

'  I  Rotuli  Cur.  Reg.  173.  =  lb.  174.  3  ib.  159. 

R 


242  HISTORY   OF   PROCEDURE. 

known  who  he  was  or  who  killed  him.  Judgment,  murder.  The 
same  say  that  Ralph,  a  rustic,  is  fugitive  "  pro  malo  recto  "  (i.e. 
rectato,  accused)  and  was  at  R.  in  the  frankpledge  of  the  hos- 
pitallers. Judgment,  that  the  land  of  the  hospitallers  in  R.  be  in 
mercy  for  his  flight ;  and  his  chattels  were  worth  two  shillings, 
whence  the  sheriff,  Hugh  de  Nevill,  ought  to  answer.  Hundred 
of  Edwinstree.i     The  jurors  say  that   in   the   grange  of  the 
monks  of  C.  at  T.  two  mendicants  there  receiving  hospitality 
slew  a  third,  and  it  is  not  known  who  they  were.     Judgment, 
murder.     The  same  say  that  Luke  de  B.  appealed  Walter 
de  M.  and  Geoffrey  T.  of  the  theft  of  an  ox,  (that)  Walter 
essoined  himself  de  ultra  mare,  and  Geoffrey  came  not,  and 
his  pledge  was  William  de   M.,  and  he    is  in  mercy.     The 
same  say  that  the  said  Luke  appealed  the  said  Walter  that 
within  the   king's   peace   and   in   felony  he   robbed   him   of 
Felicia,  his  wife,  and  of  his  seal,  and  of  his  goods  to  the  value 
of  one  hundred  shillings,  and  this  he  offered  to  prove  by  the 
consideration  of  the  court  at  the  advent  of  the  justiciars  (in 
eyre).     At  Hadham,  a  town  of  L.,  a  certain  man  was  found 
slain,  and  it  is  not  known  who  he  was.     Judgment,  murder. 
And  (Richard  S.  was  put  in  pledge  for  his  death,  and  his 
pledges  were  Ralph  F.  and  Robert  O.,  and  they  are  in  mercy 
because  they  have  not  him  whom  they  pledged  2)  the  jurors 
did  not  afterwards  accuse  Richard.     Judgment  that  Richard 
go  quit.     Hundred  of  Hertford. ^     The  jurors  say  that  in  the 
forest  of  C.  a  certain  man  was  found  slain,  and  it  is  not  known 
who  he  was.     Judgment,  murder.     At  W.  Ralph  and  S.  were 
slain  at  night  in  their  house  by  a  certain  malefactor  receiving 
hospitality  there.     Englishry  was  presented.     The  same  say 
that  at  13.  Roger  G.  slew  Andrew,  a  merchant,  and  fled  and 
was  outlawed,  and  that  he  remained  at  S.  in  land  of  the  abbot 
of  Westminster.     And  the  chattels  of  the  fugitive  were  worth 
two  shillings,  whence  Hugh  de  Nevill  (was  to  account  at  the 

'  I  Roluli  Cur.  Reg.  i6o.  -  This  parenthesis  is  a  cancellation. 

3  I  Rotuli,  161. 


THE   ISSUE   TERM. 


243 


Exchequer),  and  he  was  in  the  frankpledge  of  Richard  C,  and 
(that)  he  is  in  mercy.  Arnulf,  son  of  IT.  de  H.,  is  a  fugitive 
for  robbery,  and  was  out  of  frankpledge  in  Ilodesden.  Judg- 
ment that  the  town  is  in  mercy  for  murder.  Hundred  of 
Dacor.i  The  jurors  say  that  in  the  fields  of  W.  a  certain 
infant  was  found  dead,  and  it  is  not  known  who  it  was. 
Englishry  was  not  presented.  Judgment,  murder.  The 
county  declares  that  Thomas  P.  was  accused  of  robbery  and  of 
housebreaking,  and  was  taken  and  put  in  gaol  in  the  time  of 
Robert  de  L.,  then  sheriff,  and  it  is  not  known  what  has 
become  of  him.  Robert  says  that  he  was  dismissed  on  bail  in 
the  County  Court,  the  names  of  the  bail  being  Richard  de  H. 
and  five  others  named.  And  they  defend  that  they  did  not 
go  his  securit}',  and  put  themselves  upon  the  county.  And 
the  county  declares  that  they  did  not.  Judgment,  Robert  in 
,mercy.2 

The  following  like  reports  of  local  affairs,  somewhat  more 
full,  are  of  the  tenth  year  of  Richard  (1198)  :  The  jurors  say 
that  in  the  town  of  K.  William  H.  was  found  dead  of  cold, 
and  no  one  is  accused  thereof  Englishry  was  not  presented. 
Judgment,  murder.  William  de  P.,  an  officer  of  the  hundred, 
(says)  that  four  neighbours  had  been  attached  for  the  death  of 
that  person  ;  and  he  brought  four  men  who  had  not  been 
attached.  And  William  P.  was  then  sheriff,  and  Robert  de  L. 
under  him,  and  no  one  answers  for  them,  and  it  is  testified  by 
the  county  that  no  one  was  attached  in  the  matter.  William 
is  in  mercy  for  a  false  presentation,^  In  the  town  of  B. 
William  de  S.,  a  lunatic,  was  found  dead,  and  it  is  not  known 
of  what  race  ("  unde,"  whether  of  Norman  or  English  descent) 
he  had  been  born.  Englishry  was  not  presented.  Judgment, 
murder.4  The  jurors  say  that  William  N.  appealed  William 
de  B.  and  Robert,  his  son,  that  in  the  peace  of  the  king, 
wickedly,  and  in  housebreaking,  they  robbed  him  of  six  shil- 
lings and  six  pence  worth  of  his  chattels,  and  of  his  custody 

'   I  Roluli,  162.  =  lb.  164.  3  lb.  203.  4  Ibid. 

R    2 


244  HISTORY   OF   PROCEDURE. 

robbed  him  of  twenty-four  bidentes,  and  broke  the  doors  of 
the  house  in  his  custody,  and  the  hinges,  and  other  things  to 
the  vahie  of  ten  shillings,  and  (that)  he  had  offered  to  prove 
by  his  body  by  consideration  of  the  court.  (They  say  that) 
William  and  Robert  defended  all,  word  for  word,  and  they  say 
that  Mauricius, "  victricius'\of  the  said  William  (defendant), held 
of  his  fee,  who  having  died,  (the  defendant  William)  acknow- 
ledged that  he  was  of  his  (the  appellor's)  fee,  and  a  certain 
neighbour  of  his  (defendant's).  Alexander,  son  of  Philip, 
procured  from  him  pasture  in  the  same  fee  for  twenty-five 
sheep,  and  afterwards  came  the  said  William  le  N.  (the 
appellor)  to  that  fee  and  carried  off  the  said  sheep,  and  put 
them  in  another  fee,  and  detained  them  so  that  the  said 
William  de  B.  and  Robert,  his  son,  came  to  William,  son  of  G., 
an  officer  of  the  hundred,  and  retook  the  sheep  through  him 
by  replevin,  and  the  officer  testifies  this.  And  the  whole 
county  testifies  that  he  (William  le  N.)  had  appealed  the  men 
"  ex  more  solito."  (But)  it  was  considered  (by  the  Eyre)  that 
there  was  no  (good)  appeal  against  them.  Judgment  that 
William  le  N,  be  in  mercy  for  a  false  appeal,  and  William  and 
Robert  be  quit  thereof.  ^  (The  jurors  say,  that)  Robert  F.,  a 
robber,  had  appealed  Walter  de  B.  of  complicity  (in  the  crime) 
and  of  flight.  And  he  was  in  the  frankpledge  of  William  B. 
and  of  Elias  R.,  and  they  are  in  mercy.  And  the  said  Robert 
had  appealed  L.  S.  and  R.  H.  of  complicity.  And  the  jurors 
say  that  there  was  no  evil  accusation  against  L.  or  R.  S. 
Judgment  that  R.  S.  efforce  their  pledges,  and  so  let  him  be 
under  pledge.     And  in  like  manner  L.2 

The  jurors  who  make  these  reports  possess  functions 
including  indeed,  but  at  the  same  time  far  greater  than,  those 
of  the  modern  grand  jury.  Aside  from  their  duties  as  jurors 
of  presentment  in  the  modern  sense,  under  the  Assises  of 
Clarendon  and  Northampton,  they  form  part  of  the  king's 
fiscal  machinery  in  the  counties,  acting  in  aid  of  the  justiciars 

'  I  Rotuli,  205.  '  lb.  207. 


THE    ISSUE   TERM.  245 

in  Eyre  in  rendering  the  administration  of  the  revenue  efficient. 
The  plan  of  the  agenda  of  the  Eyre  of  1 194,  heretofore  quoted, 
is  thus  shown  to  be  merely  an  example,  as  we  have  suggested  it 
was,  and  not  some  peculiar  requirement  of  a  single  year.  And 
there  is  good  reason  to  believe  that  earlier  jurors  of  present- 
ment exercised  similarly  extensive  functions.  It  was  incum- 
bent upon  the  justiciars  in  Eyre  from  the  first  to  ascertain 
everything  (not  within  the  sole  province  of  the  sheriffs)  that 
was  of  concern  to  the  king  ;  and  this  could  only  be  done 
through  local  jurors.  The  reports  of  these  jurors,  it  is  worthy 
of  mention,  of  whatever  nature,  were  called  "placita  corona  ;  " 
a  term  not  yet  used  in  the  sense  now  attached  to  it.  It 
simply  meant  business  of  concern  to  the  Crown,  reported  to 
the  Eyre  by  the  jurors  as  having  transpired  in  the  particular 
district  since  the  last  visitation  or  report.  The  "  pleas  of  the 
Crown  "  in  the  modern  sense  (i.e.  common  criminal  prosecu- 
tions) appear  to  have  been  tried  mostly  in  the  popular  courts, 
before  the  coming  of  the  Eyre,  at  least  in  the  time  of  the 
Rotuli  Curiae  Regis  (i  194- 1 199)  ;  and  considered  merely  as 
prosecutions  of  crime,  these  were  not  "  placita  coronee  "  at 
all.  Most  prosecutions  of  crime  were  carried  on,  even  in  the 
Eyre  and  in  the  King's  Court,  by  private  appeals,  or  by 
appeals  largely  in  the  interest  of  some  local  franchise  or  lord 
of  lands ;  though  the  king  also  might  have  an  interest  in  the 
result. 

The  only  other  feature  of  the  term  to  be  noticed  before 
resuming  the  development  of  the  procedure  in  a  common  plea 
is  the  appointment  of  attorneys  in  the  place  of  plaintiff  or 
defendant,  to  gain  or  lose.  Of  acts  of  this  kind  the  Rotuli  also 
furnish  many  examples  ;i  but  the  subject  has  been  sufficiently 
considered  elsewhere,  and  it  is  only  necessary  to  mention  it 
here.  It  should  also  be  observed,  in  order,  that  the  great 
feature  of  the  term  of  the  King's  Court  and  of  the  Eyre  is  the 
appearance  of  the  assise  in  recognitions.     This,  however,  is 

'  I  Rotuli,  165,  178  (10  Rich.  I.). 


246  HISTORY  OF   PROCEDURE. 

reserved  for  consideration  later.  These  four  subjects,  essoins, 
placita  corona;  (including  amercements  direct  and  upon  reports 
from  without,  and  reports  upon  matters  generally  relating  to 
the  interests  of  the  king),  appointment  of  attorneys,  and  assises 
under  the  recognitions,  embrace,  with  the  hearing  of  common 
pleas  in  general,  most  of  the  ordinary  judicial  business  of  the 
regular  term.  But  other  business  in  great  variety,  relating  to 
public  interests,  w^as  also  transacted.  The  separation  of  the  judi- 
ciary from  the  legislative  and  municipal  branch  of  government, 
it  need  hardly  be  said,  had  not  yet  taken  place. 

Turning  now  to  the  consideration  of  the  common  pleas 
and  supposing  the  defendant  to  have  appeared  in  a  particular, 
case,  the  pleadings  are  opened  by  the  plaintiff,  demandant, 
or  appellor,  setting  out  his  demand  or  appeal.  This  in 
common  actions  was  done  in  language  formulated  by  ancient 
usage,  and  requiring  great  exactness  of  statement.  The 
defendant  was  under  no  liability  to  the  plaintiff  through  the 
process  of  the  courts  except  that  fixed  by  law.  Legal  process 
was  an  innovation  upon  the  ancient  right  of  private  redress,  a 
right  not  yet  obsolete ;  and  the  plaintiff  acquired  no  greater 
benefit  in  court  than  the  law  in  express  terms  gave  him. 
The  defendant  therefore  deemed  himself  entitled  to  take  ad- 
vantage of  the  slightest  flaw  or  miskenning  of  his  adversary.'' 

The  question  of  the  origin  and  significance  of  the  formal 
language  itself  is  another  matter.  The  fact  that  much  of  it  in 
the  Anglo-Saxon  and  early  Norman  period,  like  certain  formal 
parts  of  general  grants,  especially  those  conferring  jurisdiction, 
was  of  a  rhyming  nature  has  often  been  alluded  to.  Of  the 
Anglo-Saxon  oath-formulas  it  has  been  observed  that  it  is  im- 
possible to  read  them  without  perceiving  at  every  turn  their 
rhythmical  quantity  and  alliteration.  "An  ear  any  way 
accustomed  to  Anglo-Saxon   poetry  will   easily  detect   the 

'  Fine  for  miskenning  (mistake  of  language  in  pleading)  was  abolished  in 
London  by  Henry  I.  See  the  Charter  to  the  Citizens  of  London,  Stubbs,  Sel, 
Ch.  io8  (2d  ed.).     Other  towns  inobably  obtained  a  like  exemption. 


THE    ISSUE  TERM.  247 

disjointed  members  of  their  poetic  formulae,  and  instinc- 
tively arrange  them  in  the  order  in  which  they  ought  to 
stand."  I  Neither  the  metre  nor  the  alhteration,  however,  is 
constant ;  and  the  latter,  when  it  does  occur.  Is  said  to  be 
usually  unlike  the  common  poetic  alliteration,  having  no 
"chief  letter"  in  the  second  line.2  It  is  proper  to  add,  that 
the  use  of  this  kind  of  alliteration,  as  well  as  final  rhyme,  in 
early  laws  and  judicial  documents  was  common  to  all  the 
Germanic  including  the  Scandinavian  nations. •^  This  may  not 
be  very  satisfactory  as  an  explanation  of  the  special  formalism 
of  the  earlier  Germanic  pleadings  ;  but  it  is  about  as  far  as 
explanation  can  yet  go. 

Under  this  formalism  of  plaint,  or  rather  in  it,  forms  of 
action  existed  as  distinctly  as  they  have  existed  in  modern 
English  law.  Indeed,  as  we  have  more  than  once  stated,'^ 
modern  English  forms  of  actions  are  lineally  descended  from 
them  ;  and  this,  too,  with  no  greater  change  than  had  been 
effected  upon  the  English  people  themselves  in  the  same  course 
of  time.  There  was  never  any  sudden  change  from  the 
Germanic  to  the  modern  formulae.  A  gradual  progress  from 
the  one  to  the  other  may  be  traced  from  the  pre-Norman 
through  the  Norman  period  to  the  time  of  Edward  the  First, 
when  the  modern  forms  of  action  may  be  considered  to  have 
assumed  their  definite  type. 

The  subject  is  somewhat  obscured  by  the  introduction  of 
the  writ  process  after  the  Conquest,  and  the  peculiar  history 
and  development  of  writs  into  their  final,  settled  form.  But 
if  it  be  remembered  that  the  writ  did  not,  before  the  thirteenth 

'  I  Anc.  Laws  and  Inst.  178,  note  (8vo  ed.).  '  Ibid. 

3  lb.  see  Grimm's  Deutsche  Rcchts-Alterthiimer,  p.  6. 

4  Wherever  a  formula,  in  whole  or  in  part,  appears,  its  relationship  to  an  earlier 
one,  if  known,  appears  ;  and  the  requirement  of  almost  literal  accuracy  in  the  use 
of  the  same  is  constantly  enforced.  There  was  no  interval  of  disuse,  and  there 
was  no  legislative  change.  Bracton  in  the  thirteenth  century  uses  language  of  the 
very  same  tenor  as  that  used  before  the  Conquest  and  afterwards  down  to  his  own 
time.  He  gives  the  form  of  appeal,  for  instance,  in  the  case  of  an  approver  (one 
who  has  turned  king's  evidence)  against  his  accomplice,  and  adds  that  he  must 
state  the  formula  without  variation  or  any  change.— Bracton,  153. 


248  HISTORY   OF   PROCEDURE. 

ccntui-}',  hav^c  any  necessary  relation  to  the  formula:  of  plead- 
ing (further  than  to  indicate  in  most  cases  the  nature  of  the 
suit),  and  that  the  formulae  of  plaint  and  defence  proceeded  as 
in  the  time  anterior  to  the  general  use  of  writs,  this  obscurity 
will  be  eliminated.  The  technical  words  of  the  modern 
declaration  begin  to  appear  in  the  language  of  the  ancient 
plaint  long  before  they  appear  in  the  writ. 

The  pleadings  in  criminal  and  (juasi-cnmin:^],  and  perhaps 
in  some  other,  cases  were  begun  by  a  fore-oath  ("for-ath," 
"antejuramentum")  on  the  part  of  the  plaintiff,  or  by  some- 
thing tantamount  thereto  (as  by  showing  a  wound  to  the  court 
in  the  case  of  an  action  for  a  battery),  which,  with  witnesses 
or  compurgators,  accomplished  the  purpose  of  making  a  pre- 
sumption against  the  defendant,  or,  as  would  be  said  in 
modern  times,  of  making  a  prima  facie  case.  This  fore-oath 
contained  a  statement  of  the  cause  of  action,  and  also  a  solemn 
assertion  that  the  suit  was  not  instituted  out  of  fraud,  deceit, 
or  craft.  The  reason  for  this  is  obvious.  Upon  an  issue  raised 
by  the  defendant,  it  devolved  upon  him  to  give  security,  either 
by  personal  sureties  or  oftener  by  putting  his  property  in 
pledge,  to  furnish  the  proof  of  his  innocence,  so  that,  had  it 
not  been  for  the  oath  with  its  consequences,  men  of  property 
would  constantly  have  been  at  the  mercy  of  the  evil-disposed. 
"Also  we  have  ordained,"  said  the  laws  of  Edward  the  Elder, 
"  if  there  were  any  evil-minded  man  who  would  put  another's 
property  in  '  borgh  '  (pledge)  for  '  wither-tihtle  '  (lit.  cross  accu- 
sation, here  false  accusation,  opposed  to  the  truth),  that  he 
should  then  declare  on  oath  that  he  did  it,  not  from  any 
knavery,  but  with  full  right,  without  fraud  and  guile,  and  that 
he  (the  defendant)  then  should  there  do  as  he  durst  with 
whom  it  is  attached  ;  *  like  as  he  it  owned,  so  he  it  vouched  to 
warranty.'  "  ^ 

Two  forms  of  oath  used  under  this  requirement  of  law  have 

'  Edw.  I.  c.  I,  §  5.     The  words  of  the  last  clause  are  words  of  defence  used  in 
the  pleading-. 


THE    ISSUE   TERM.  249 

been  preserved.  "Thus  shall  a  man  swear,"  reads  the  title 
to  the  first,  "  when  he  has  discovered  his  property  and  brings 
it  in  process  ['  on  gangc '].  By  the  Lord,  before  whom  this 
relic  is  holy,  sol  my  suit  prosecute  with  full  folk-right,  without 
fraud  and  without  deceit^  and  without  any  guile,  as  was  stolen 
from  me  the  cattle  N.  that  I  claim,  and  that  I  have  taken  with 
N." "  The  reply  by  "  the  other's  oath  with  whom  a  man  discovers 
his  cattle,"  was  as  follows:  "By  the  Lord,  I  was  not  at  rede 
nor  at  deed,  neither  counsellor  nor  doer,  where  were  unlawfully 
led  away  N.'s  cattle.  But  as  I  cattle  have,  so  did  I  with  right 
obtain  it."  And  then  follow  these  alternative  special  pleas  : 
"And  :  as  I  vouch  it  to  warranty,  so  did  he  sell  it  to  me  into 
whose  hand  I  now  set  it.  And  :  as  I  cattle  have,  so  did  he 
sell  it  to  me  who  had  it  to  sell.  And  :  as  I  cattle  have,  so  did 
it  come  of  my  own  property,  and  so  it  by  folk-right  my  own 
possession  is,  and  my  rearing."  2 

The  other  form  of  oath  for  the  plaintiff  is  given  under  the 
title,  "  The  oath  of  him  who  discovers  his  property,  that  he 
does  it  neither  for  hatred  nor  for  envy,"  and  is  as  follows  : 
"  By  the  Lord,  I  accuse  not  N.  either  for  hatred  or  for  envy, 
or  for  unlawful  lust  of  gain  ;  nor  know  I  anything  soother  ; 
but  as  my  informant  to  me  said,  and  I  myself  in  sooth  believe, 
that  he  was  the  thief  of  my  property." -5  The  denial  by  "the 
other's  oath  that  he  is  guiltless  "  was  as  follows  :  "  By  the 
Lord,  I  am  guiltless,  both  in  deed  and  counsel,  of  the  charge 
of  which  N.  accuses  me."'^ 

These  replies  appear  to  have  been  the  exculpatory  oaths, 
and  not  merely  the  issue-answer  of  the  pleading  term  ;  for  the 
oath  last  quoted  is  followed  by  another  given  by  a  compurgator 
of  the  defendant.  "  His  companion's  oath  who  stands  with 
him"  was  :  "  By  the  Lord,  the  oath  is  clean  and  unperjured 

'  Oaths,  2  ;  I  Anc.  La-\vs,  179.  In  the  case  of  a  suit  for  stolen  property,  the 
owner,  in  the  time  of  /Ethelstan,  took  five  neighbours  with  him,  one  of  whom 
should  swear  with  him,  when  the  property  was  found,  that  he  was  putting  his  hand 
upon  his  own. — /Ethelstan,  i.  c.  9. 

'  Oaths,  3.  3  lb.  4;  I  Anc.  Laws,  i8i.  *  lb.  5. 


250  HISTORY   OF   PROCEDURE. 

whicli  N.  has  sworn."  ^  But  the  defendant's  plea  was  of  course 
substantially,  if  not  verbally,  the  same  at  the  issue  term  as  at 
the  trial  term. 

Whether  an  oath  that  the  plaintiff  was  not  actuated  by 
fraud  or  guile  was  required  in  other  than  criminal  and  quasi- 
criminal  cases  does  not  appear.  There  would  be  equal  occasion 
for  it  in  civil  actions.  As  between  lord  and  man,  however,  in 
actions  for  non-payment  of  rent,  or  non-performance  of  services 
and  customs,  it  probably  could  not  have  been  required  ;  but 
all  that  can  be  said  beyond  this  is  that  the  passages  in  which 
the  fore-oath  is  mentioned  relate  to  crimes.  "  Let  single  lad 
[purgation],"  say  the  Laws  of  Cnut,  "  be  preceded  by  a  single 
fore-oath,  and  a  threefold  lad  by  a  triple  fore-oath.  And  if 
a  thegn  have  a  true  man  to  take  the  fore-oath  for  him,  be  it  so. 
If  he  have  not  let  him  begin  his  suit  himself,  and  let  no  fore- 
oath  ever  be  omitted." 2  In  the  laws  of  the  Conqueror  it  is 
declared  that  the  appellor  of  theft  shall  swear  by  seven  legal 
men  that  neither  for  hatred  nor  for  any  other  cause  has  he 
accused  the  defendant,  except  according  to  law.3  The  laws  of 
Henry  the  First,  like  those  of  Cnut,  declare  that  a  simple  lad 
shall  be  preceded  by  a  simple  fore-oath,  and  a  triple  lad  by  a 
triple  fore-oath.  "  And  let  no  fore-oath  ever  be  excused."^ 
It  may  be  added  that  in  the  case  of  accusations  by  men  of  the 
church  against  inferior  laymen,  and  perhaps  of  laymen  of  rank 
against  men  of  mean  degree,  the  oath,  on  the  exhibition  of  a 
wound  (if  the  action  was  for  a  battery),  was  perhaps  sufficient, 
without  witnesses  or  compurgators,  to  make  ?i  prima  facie  case 
against  the  defendant. -^ 

To  make  a  prima  facie  case  in  a  civil  action  relating  to 
real  or  personal  property  or  to  debt,  the  plaintiff  generally 
appeared  at  the  first  term  with  charters  or  with  one  or  more 

'  Oaths,  6  ;  I  Anc.  Laws,  iSl.  "  Cnut,  Secular,  c.  22. 

3  Wni.  I.  i.  c.  14.  ■*  Hen.  I.  c.  64,  §  9.       Probably  this  refers  only  to 

appeals  ;  not  e.g.  to  actions  for  debt. 

s  Comp.  the  case  of  civil  actions  infi-a,  and  the  offer  of  an  appellor  to  make 
proof  as  a  maimed  man. — i  Rotuli  Cur.  Reg.  60,  Richard  de  W.,  and  latter  part 
of  the  present  chapter. 


THE    ISSUE   TERM.  251 

witnesses  de  visit  ct  amlitn ;  of  which  there  are  not  wanting 
actual  examples.!  But  the  testimony  of  these  witnesses  at  the 
issue  term  did  not  constitute  proof.  The  unsupported  allega- 
tion of  the  plaintiff  was  insufficient  to  compel  an  answer  ;  2 
and,  unless  the  plaintiff  could  call  in  aid  the  ecclesieistical 
judge,^  the  defendant  was  at  once  entitled  to  judgment.^  The 
evidence  of  charters  or  of  witnesses  was  added  so  as  to  make 
for  the  purposes  of  the  issue  term,  like  the  fore-oath  in 
criminal  cases,  a  presumptive  case  against  the  defendant.  It 
availed  nothing  at  the  trial  term.^ 

There  was  one  exception,  however,  to  the  rule  requiring  a 
plaintiff  to  bring  charters  or  witnesses  before  the  court  at  the 
issue  term,  and  that  was  when  he  was  a  person  of  such  position, 
as  compared  with  the  defendant,  as  to  make  it  derogatory  to 
his  dignity  to  require  support  at  the  first  term  to  his  allegation. 
When  the  plaintiff  was  lord  of  the  manor  and  the  defendant 
v/as  one  of  his  common  men,  or  when  the  plaintiff  was  an 
officer  of  the  treasury  or  keeper  of  the  royal  forests,  his  unsup- 
ported allegation  was  sufficient  to  require  the  defendant  to 
make  answer. 

Such  at  least  was  the  rule  in  Normandy  in  the  thirteenth 
century.  The  Somma  says:  "Notandum  eciam  est,  quod 
nuUus  in  curia  sua  teste  indiget  contra  eum  quem  accusat. 
Vox  enim  sola  domini  curiai  in  eis  quae  ad  ipsum  pertinent, 
sufficit  ad  accusationem  subditorum."^  As  to  fiscal  officers  it 
was  said  :  "  Li  foretier  n'amenront  pas  tesmoing  seur  le  mesfet 


'  See  Placita  Ang.-Norm.  17,  38.  -  Glanvill,  lib.  10,  c.  12.  3  Ibid. 

''  See  e.g.  the  case  of  Abbot  Gausfrid  and  the  Abbot  of  Marmoutier,  Placita 
Ang.-Norm.  122,  in  which  the  plaintiff  lays  claim  to  spiritual  authority  over  the 
abbot  of  Battel,  and  is  called  upon  to  furnish  charters  or  wtnesscs  to  substantiate 
his  claim ;  failing  in  which,  judgment  is  given  for  the  abbot  of  B.  at  the  first 
term.  Comp.  also  c.  38  of  Magna  Charta:  "  Nullus  ballivus  ponat  de  cetero 
aliquem  ad  legem  [the  ordeal]  simplici  loquela  sua,  sine  testibus  fidelibus  ad  hoc 
inductis." 

3  See  Brunner,  Schwurg.  170. 

*  Somma,  lib.  2,  c.  63,  §  5.  This,  however,  was  subject  to  limitation.  "Li 
sires  aura  sanz  tesmoing  le  serement  de  son  homme  une  foiz  en  I'an." — Marnier, 
Etabl.  et  Cout.  p.  29. 


252  HISTORY  OF  PROCEDURE. 

de  la  forest,  ni  le  prevost  en  leur  prevoste,  ne  H  sergent  en 
leur  sergenteries."! 

An  illustration  of  the  general  practice  deserving  special 
mention  is  found  in  the  demand  of  the  duel  by  the  plaintiff  in 
a  writ  of  right.  The  plaintiff  brings  forward  one  or  more 
witnesses  to  substantiate  his  claim  and  compel  an  answer ; 
the  witness  supplementing  the  plaint  of  his  principal  thus  : 
"  Hoc  vidi  et  audivi  et  esgardium  curia;  super  hoc  facere  sum 
paratus."  An  example  may  be  seen  in  the  case  of  Bishop 
Wulfstan  V.  Abbot  Walter,  temp.  William  the  Conqueror.2  The 
record  says  :  "  Et  inde  sunt  legitimi  testes  apud  nos,  milites, 
homines  Sanctae  Marine,  et  episcopi,  qui  hoc  videriuit  et  audie- 
runt,  parati  hoc  probare  per  sacramentum  et  belliun  contra 
Rannulfum,"  etc. 

Unless  the  defendant  (in  the  writ  of  right)  belonged  to  the 
class  of  persons  exempt  from  the  duel  (women,  men  above 
sixty  years  of  age  or  physically  incapacitated  to  fight,  or  of 
the  religious  order  3),  or  had  charters,  he  was  bound  to  accept 
the  offer  of  battle  (before  the  Magna  Assisa)  or  confess  judg- 
ment. If  he  resisted  the  plaintiff's  claim,  he  now  denied  the 
plaint  word  for  word,  adding,  "quod  paratus  sum  defendere 
versus  eum  per  corpus  meum." 

The  requirement  in  Normandy  was  that  in  weighty  cases 
the  defendant  should  "  ad  singula  verba  accusantis  respondere 
et  ea  rememorare."  But  in  other  cases,  at  least  when  the 
accused  answered  without  counsel,  he  was  permitted  to  make 
a  short  and  comprehensive  denial.  "  Ego  pernego  per  eadem 
verba,  per  qucne  me  repetatis;"^  adding  the  "paratus  sum" 
clause  above  quoted. 

If  the  appellant  (in  Normandy)  did  not  care  to  resort  to 
trial  by  duel,  he  closed  his  plaint  with  the  words,  "et  hoc 
paratus  sum  esgardium  curia;  facere."  ^     And  his  witness  then 

•  Marnier,  p.  130.  =  Placita  Aug. -Norm.  16,  19. 

^  Notwithstanding  the  fact  that  such  persons  might  fight  by  champion,  it  seems 
that  they  were  never  bound  to  do  so.  ■*  Branner,  .Scliwurg.  171. 

s  It.  is  of  interest  to  notice  that  this  formulary  of  closing  the  plaintiff's  case  is 


THE    ISSUE   TERxM.  253 

said:  "Hoc  est  verum ;  vidi  ct  audivi  ct  esgardium  curiaa 
super  hoc  faccre  eum  paratus." 

The  case,  supposing  the  defendant  to  have  traversed  the 
demand,  was  now  at  issue,  and  it  only  remained  for  the  court 
to  pronounce  judgment  as  to  the  mode  of  proof,  the  time 
when  the  proof  was  to  be  furnished,  and  (when  the  duel  was 
not  ordered)  which  party  was  to  furnish  it.  The  last-named 
feature  of  the  case  depended  upon  the  nature  of  the  suit 
and  of  the  issue  joined.  It  will  be  considered  in  the  following 
chapter. 

It  should  be  observed  that  the  issue  appears  to  have  been 
joined  upon  the  statement  of  the  witness,  and  not  upon  that 
of  the  plaintiff.  The  defendant  denied,  it  is  true,  the  plain- 
tiff's statement,  but  he  denied  it,  it  seems,  as  affirmed  by  the 
witness."  This  tends  to  account  for  the  fact  that  the  witness 
becomes  a  champion.  The  champion  appears  properly,  and 
perhaps  in  earlier  times  solely,  as  a  witness  ;  and  as  it  is  his 
testimony,  and  not  the  plaintiff's  count,  which  makes  the 
proceeding  effective,  he  is  the  person  to  be  opposed. 

When  it  came  to  pass  that  a  father  could  require  his  son 
to  defend  the  claim  of  a  particular  person,  just  as  he  (the 
father)  as  an  eye  and  ear  witness  could  have  done,  the  first 
step  was  taken  which  finally  resulted  in  doing  away  with  the 
ancient  rule  that  the  champion  ought  to  be  a  witness.  The 
champion  still  took  an  oath  that  he  had  "  heard  and  seen  " 
the  truth,  or  that  his  ancestor  desired  him  to  deraign  it,  until 
in  the  reign  of  Edward  the  First  the  practice  had  become  so 
general  of  employing  persons  as  champions  who  were  not 
witnesses  in  the  one  sense  or  the  other,  that  the  champion- 


the  original,  or  rather  the  antecedent,  of  the  formula  of  modern  pleading,  "and  of 
this  the  plaintiff  puts  himself  upon  the  country  ;"  though  the  more  ancient  form 
has  itself  been  preserved  in  the  closing  language  of  the  appeal,  "and  this  he  is 
prepared  to  prove  as  the  court  may  direct,"  a  formulary  which  continued  to  be 
used  until  the  abolition  in  England  of  appeals  for  murder  and  felony  in  1819. 

'  The  defendant  in  Normandy  denied  the  language,  both  of  the  plaintiff  and 
of  the  witness. — Brunner,  Schwurg.  172, 


2S4  HISTORY   OF   PROCEDURE. 

oath  generally  amounted  to  perjury.  By  the  Act  of  West- 
minster I.  c.  41,  the  champion  was  relieved  of  the  necessity 
of  taking  an  oath;  though  the  ancient  principle  that  the 
champion  ought  to  be  a  witness  still  manifested  itself  in 
frequent  expressions  of  opposition  to  paid  champions. 

In  order  to  show  more  accurately  the  state  of  forms  of 
action  in  the  twelfth  century,  and  to  lay  a  foundation  for  com- 
parison (at  another  time)  with  the  plaint  and  plea  of  later 
times,  it  becomes  necessary  to  quote  more  at  length  from 
some  of  the  records  of  the  period.  Unfortunately,  no  com- 
plete formulae  in  use  in  England  after  the  Conquest,  of  an 
earlier  date  than  the  time  of  Glanvill's  justiciarship  {an.  1 180- 
1 1 89),  have  been  preserved  ;  but  the  last  twenty  years  of  the 
twelfth  century  may  be  safely  taken  as  representing,  in  respect 
of  the  formulee  to  be  quoted,  the  entire  reign  of  Henry  the 
Second. 

Glanvill  has  given  the  form  of  count  used  in  three  of  the 
real  actions  of  his  time,  to  wit,  in  the  general  writ  of  right,  in 
the  writ  of  right  of  advowson,  and  in  the  writ  of  right  of 
dower.  In  the  first  of  these  actions  the  demandant  counted 
as  follows  :  "  I  demand  against  this  H.  half  a  knight's  fee,  in 
such  a  vill,  as  my  right  and  inheritance,  of  which  my  father 
(or  my  grandfather)  was  seised  in  his  demesne  of  fee  in  the 
time  of  king  Henry  the  First,  or  after  the  first  coronation  of 
our  lord  the  king,  and  whence  he  took  the  profits  to  the  value 
of  five  shillings  at  least,^  as  in  grain, hay,  and  other  produce;  and 
this  I  am  ready  to  prove  by  my  freeman  J.,  and  if  any  accident 
happen  to  him,  by  such  a  one  or  by  a  third  (and  the  deman- 
dant may  thus  name  as  many  as  he  may  choose,  though  only 
one  of  them  shall  wage  the  duel)  who  saw  this  or  heard  it."  Or 
the  demandant  might  use  other  words,  thus  :  "And  this  I  am 
ready  to  prove  by  my  freeman  J.,  to  whom  his  father  when  on 
his  death-bed  enjoined  by  the  faith  which  a  son  owes  his 
father  that  if  he  ever  heard  a  claim  concerning  that  land, 

'  The  esplees,  a  momentary  seisin  being  insufficient.     See  Biaclon,  372b,  373. 


THE    ISSUE   TERM.  255 

he  should  prove  this  as  that  which  his  father  saw  and 
heard."  i 

The  demandant's  claim  having  thus  been  made,  it  was  at 
the  election  of  the  tenant  either  to  defend  himself  by  the  duel, 
or  to  put  himself  upon  the  king's  Grand  Assise  and  thus 
require  a  recognition  to  ascertain  which  of  the  two  had  the 
greater  right  to  the  land  in  dispute.  If  he  elected  the  former 
mode,  he  was  to  deny  the  alleged  right  of  the  demandant  word 
for  word,  as  the  demandant  set  it  forth.  If  the  tenant  pre- 
ferred to  put  himself  upon  the  Grand  Assise,  the  demandant 
had  the  right  to  show  cause  against  the  assise  proceeding;  but 
the  objection  was  to  be  taken  after  the  election  of  the  recog- 
nitors and  upon  their  appearance  to  give  answer  as  to  the  right 
in  question.  The  same  practice  prevailed  in  the  case  of  the 
possessory  recognitions,  and  will  be  illustrated  presently. 

In  the  claim  of  a  rig-/it  of  advowson,  the  demandant  said  : 
"  I  demand  the  advowson  of  this  church  as  my  right  and 
pertaining  to  my  inheritance,  of  which  advowson  I  was  seised 
(or  one  of  my  ancestors  was  seised)  in  the  time  of  king  Henry 
the  First,  grandfather  of  our  lord  king  Henry  (or  after  the 
coronation  of  our  lord  the  king)  ;  and  being  so  seised,  I- 
presented  a  parson  to  the  same  church  when  vacant,  at  one 
of  the  above-mentioned  periods.  And  I  so  presented  him 
that  upon  my  presentation  he  was  instituted  parson  into  that 
church ;  and  if  anyone  will  deny  this,  I  have  some  credible 
men  who  both  saw  and  heard  the  fact,  and  are  ready  to  proye 
it  as  the  court  shall  award,  and  particularly  such  and  such 
persons."  2  The  tenant  might  defend  as  in  the  writ  of  right 
above  referred  to. 

The  claim  for  dower  was  expressed  more  briefly.  "I 
demand,"  said  the  widow,  "  such  land,  as  appertaining  to  such 
land,  which  was  named  to  me  in  dower^  and  of  which  my 
husband  endowed  me  at  the  door  of  the  church  the  day  he 
espoused  me,  as  that  of  which  he  was  invested  and  seised  at 

'  Glanvill,  lib.  2,  c.  3.  =  lb.  lib.  4,  c.  6. 


256  HISTORY   OF   PROCEDURE. 

the  time  when  he  endowed  me."  ^  This  proceeding  was 
against  the  tenant  as  well  as  against  the  heir ;  but  it  was 
chiefly  against  the  heir  in  ordinary  cases,  i.e.  when  the 
tenant  did  not  claim  in  his  own  right,  paramount  to  the  heir.2 
The  latter  was  separately  summoned,  and  on  failing  to  appear 
or  to  send  an  attorney  after  three  essoins,  might  be  distrained 
in  his  fee  or  attached  by  pledges  (it  was  not  clear  which  was 
the  proper  course).  If  the  heir  on  appearance  conceded  the 
widow's  claim,  it  was  his  duty  to  recover  the  land  from  the 
tenant  or  give  her  an  equivalent.  But  he  might  deny  her 
claim  and  bring  the  matter  to  the  determination  of  the  duel ; 
provided  the  widow  produced  in  court  persons  who  had  heard 
and  seen  the  endowment,  or  some  competent  witness  who  may 
have  heard  or  seen  the  act  by  the  ancestor  of  the  heir,  at  the 
church  door,  at  the  time  of  their  espousals,  and  be  ready  to  prove 
such  fact  against  him.  This  part  of  the  widow's  plaint,  serving 
the  necessary  purpose  of  making  7!^  prima  facie  case  for  her,  was 
probably  added  to  the  demand  above  quoted,  as  in  the  counts 
already  presented. 

The  following  were  the  pleadings  in  an  actual  cause  of 
"reasonable  dower"  in  the  year  1194  ;  and  they  are  of  special 
interest  as  showing  that  the  practice  of  bringing  the  sccta  was 
in  familiar  use  in  the  twelfth  century  :  Emma,^  who  was  wife 
of  Ralph,  son  of  R.,  seeks  against  William,  son  of  Ralph,  her 
reasonable  dower  which  pertained  to  her  of  the  frank  tenement 
which  was  of  the  said  Ralph,  formerly  her  husband,  in  N.  (and 
in  other  places  named).  And  William  comes  and  says  that 
Ralph,  his  father,  gave  the  said  Emma,  on  the  day  when  he 
espoused  her,  a  certain  vill,  namely  H.,  in  dower,  and  she 
thereupon  held  herself  quitted,  and  of  this  he  brought  his  suit 
("  sectam  produxit ")  which  was  then  present,  and  besides  he 
said  that  she,  after  the  death  of  his  father,  was  put  in  seisin 

'  Glanvill,  lib.  6,  c.  8.     Comp,  Rcgiam  Maj.  lib.  2,  c.  1 6. 
"  See  for  an  example  of  resistance  by  the  tenant,  i  Rotuli,  20,  "Matilda  uxor 
Walteri,"  etc.  3  Rotuli  Cur.  Reg.  145. 


THE    ISSUE   TERM.  257 

thereof,  and  took  the  esplces  as  long  as  she  wished,  and  if 
the  secta  which  he  brought  did  not  suffice,  he  put  himself  upon 
the  good  men  who  were  present  at  the  espousals  and  upon  that 
neighbourhood.  And  Emma  defends  all,  and  says  that  she 
was  never  endowed  of  that  vill,  nor  did  she  hold  herself 
quitted,  and  that  she  was  endowed  of  the  third  part  of  all  the 
land  which  Ralph,  her  husband,  had,  and  of  this  she  brought 
her  suit  ("  produxit  sectam  ")  which  was  present  at  the  es- 
pousals, and  besides  the  suit  which  she  brought  she  puts  her- 
self upon  a  legal  jury  of  that  county.  Emma  puts  in  her  place 
M,  to  gain  or  lose  at  the  coming  of  the  justiciars.  Let  an 
assise  be  had  by  good  men  of  the  neighbourhood. 

The  following  are  the  pleadings  in  a  record  of  the  same 
year,  arising  in  a  cause  which  afterwards  would  have  been 
called  a  writ  of  entry :  \Valkelin,i  son  of  En.,  seeks  against 
Geoffrey,  son  of  EL,  half  a  hide  of  land,  with  pertinents,  in  P., 
as  his  right  and  hiheritance,  of  which  his  father  En.,  of  whom  he 
is  the  near  heir,  was  seised  in  his  demesne  as  of  fee  on  the  day 
when  he  took  his  journey  towards  Jerusalem,  in  which  journey 
he  died  ;  in  which  land  the  said  Geoffrey  had  no  entry  save  by 
Silvester,  uncle  of  the  said  Walkelin,  who  (S.)  had  him  (W.) 
in  ward  while  he  was  within  age.  Geoffrey  comes  and  defends 
that  he  had  no  entry  in  the  said  land  by  Silvester,  and  says 
that  he  has  many  lands  in  the  said  town  of  F.,  and  seeks  a 
view  of  that  land.  Judgment  that  he  have  view,  and  a  day  is 
given  to  them  on  the  morrow  of  St.  Hilary  at  Westminster, 
and  in  the  meantime  they  have  license  of  concord. 

In  proceedings  instituted  by  process  of  recognition  there 
were  no  pleadings  before  the  appearance  of  the  recognitors, 
come  to  make  answer  of  the  matter  submitted  to  them.2 
Glanvill  says  nothing  of  any  except  upon  the  return-day  of 
the  assise.  The  writs  given  by  him  indicate  that  there  was  no 
summons  of  the  tenant  to  anything  except  to  the  hearing  of 
the  answer  of  the  recognitors  ;  though  he  tells  us  \\\  his  text 
'  I  Pvotuli  Cur.  Reg.  91,  -  Comp.  ante,  pp.  229,  230. 

S 


258  HISTORY   OF   PROCEDURE. 

that  the  tenant  was  summoned  to  be  present  at  the  election 
of  the  jurors.  The  writ  to  summon  the  recognitors,  however, 
was  peremptory,  and  there  was  no  chance  for  pleading  then. 
The  writ  itself  appears  to  have  supplied  the  place  of  plead- 
ings, issue,  and  medial  judgment.  But  it  would  have  been 
unjust  to  force  the  tenant  to  trial  upon  what  at  most  was  an 
imputed  traverse  of  the  matter  submitted  to  the  recognitors  by 
the  writ,  when  he  might  not  have  cared  to  dispute  the  plaintiff's 
allegation  (e.g.  of  a  disseisin),  but  still  might  have  had  a  good 
defence  in  avoidance  of  it ;  and  an  opportunity  was  accordingly 
given  him  when  the  demandant  brought  his  writ  into  court 
("tulit  brevem")  upon  the  return-day  and  demanded  the  hearing 
of  the  recognition. 

The  course  of  the  procedure  under  a  writ  for  any  of  the 
recognitions  appears  to  have  been  as  follows  :  The  demandant 
goes  with  his  process  (obtainable  from  the  king  or  justiciar)  to 
the  sheriff  in  court,  and  there  gives  security,  as  in  other  cases, 
to  prosecute. I  An  election  is  then  had  before  that  officer, 
according  to  the  command  of  the  writ,  of  twelve  free  and 
lawful  men  of  the  neighbourhood  (prior  to  the  time  of 
Glanvill  the  number  was  irregular,  and  it  still  varied  some- 
what), prepared  on  oath  to  make  return  upon  the  particular 
matter  submitted  in  the  writ.  The  tenant  was  summoned  to 
this  election  ;  but  though  he  did  not  appear,  the  election  still 
proceeded.  No  essoin  was  received  to  postpone  the  business. 
The  names  of  the  recognitors  were  imbreviated  by  the  sheriff, 
and,  as  it  seems  from  the  Rotuli  Curiae  Regis,2  pledges  were 
taken  from  them,  to  secure  their  attendance  and  answer  upon 
the  return-day.     After  the  election  the  tenant  was  summoned 

'  It  seems  that  the  security  to  prosecute  was  sometimes  given  before  the  writ 
was  granted. — i  Rotuli  Cur.  Reg.  7.  The  giving  of  security,  however,  was  a 
condition  to  obtaining  a  recognition. 

'  I  Rotuli,  377.  *' Summoneantur  plegii  prccdictorum  recognitorum,"  in  an 
assise  of  the  last  presentation.  Glanvill  is  silent  on  the  subject.  It  appears  to 
have  been  regarded  necessary  to  take  pledges  at  every  new  stage  of  the  proceedings, 
to  prevent  a  miscarriage  of  the  proceedings. 


THE    ISSUE   TERM.  259 

by  the  sheriff  to  appear  upon  the  day  named  hi  the  writ, 
before  the  king  or  his  justiciars,  to  hear  the  answer  of  the 
recognition.  He  was  now  allowed  two  essoins,  except  in  an 
assise  of  novel  disseisin  ;  in  which  no  essoin  was  permitted. 
On  the  third  day  set,  at  the  latest,  whether  the  tenant  were 
present  or  not,  the  demandant,  if  the  finding  was  in  his  favour, 
brought  his  writ  into  court  and  called  for  the  answer  of  the 
jurors  ("assisam  petit").  The  presiding  judge  then  asked  the 
tenant  if  he  could  show  any  cause  why  the  assise  should  not 
proceed.  At  this  point,  supposing  the  tenant  to  object  to 
hearing  the  return,  he  improves  his  opportunity  to  set  up 
matter  in  avoidance  of  the  plaintiff's  case.  He  of  course  is 
unable  to  plead  a  traverse  :  the  question  of  fact  raised  by  the 
writ  has  already  been  found  ;  and  the  finding  is  now  to  be 
against  him  if  the  assise  proceeds.  He  had  not  in  fact,  liow- 
ever,  traversed  the  plaintiff's  case,  or  otherwise  pleaded  ;  and 
hence  he  is  now  allowed  to  make  his  defence,  if  he  has  one. 

The  recognition  in  ordinary  cases,  in  the  time  of  Glanvill, 
consisted  of  twelve  persons  ;  and  their  answer  was  required  to 
be  unanimous.  If,  upon  the  return-day,  some  asserted  their 
ignorance  as  to  the  fact  in  issue,  they  were  set  aside  and  their 
place  supplied  by  others,  until  twelve  were  found  who  did 
know  of  the  fact,  and  agreed  upon  it.  In  like  manner,  if  the 
recognitors  disagreed,  others  were  to  be  added  to  their  numbers 
until  twelve  persons  were  obtained,  if  possible,  agreeing  with 
the  one  side  or  the  other.'  Prior  to  Glanvill's  time,  the  number 
of  recognitors  varied  greatly,  as  has  been  stated,  but  what 
the  rule  as  to  unanimity  may  have  been  does  not  appear. 
It  would  seem,  however,  judging  from  the  analogy  of  com- 
purgation and  witnesses,  that  if  there  was  not  at  least  a  sub- 
stantial agreement  in  the  truth  of  the  allegation  of  the  party 
who  had  sought  the  recognition,  his  case  must  have  failed. 

The  reason  why  there  were  no  pleadings  before  the  election 
of  the  assise  may  be  conjectured.     If  the  demandant  were 

'  Glanvill,  lib.  2,  c.  17. 

S    2 


26o  HISTORY   OF   PROCEDURE. 

then  to  count,  and  the  tenant  to  plead,  it  would  result  that  the 
tenant  would  always  have  it  in  his  power  to  escape  the  assise, 
even  though  he  should  merely  plead  a  traverse  of  the  matter 
submitted  by  the  writ  and  alleged  in  the  count ;  for  according 
to  the  rules  of  pleading  which  had  prevailed  from  the  earliest 
times,  and  still  prevailed,  the  party  making  the  last  good 
pleading  was  entitled  to  bring  the  proof.  Hence  a  traverse  of 
the  demandant's  case  would  have  ended  the  assise,  unless  the 
tenant  now  agreed  to  submit  the  issue  to  that  mode  of  trial. 
He  would  have  the  right  to  require  the  court  to  declare  the 
medial  judgment,  giving  him  a  trial  by  any  mode  allowed 
him  by  law  in  an  action  under  the  ancient  procedure. 

Any  pica  on  the  part  of  the  tenant  upon  which  an  issue 
could  be  joined  differing  from  the  question  which  had  been 
submitted  to  the  jurors  had  the  effect  of  putting  an  end  to  the 
recognition.  Among  the  pleas  available  for  this  purpose 
Glanvill  says  that  the  tenant  in  an  assise  of  the  last  presentation 
might  admit  that  the  demandant's  antecessor  made,  indeed,  the 
last  presentation  as  the  real  lord  and  the  eldest  heir,  but  that 
he  afterwards  transferred  the  fee,  to  which  the  advowson  was 
appendant,  to  the  tenant  or  to  his  antcccssorcs  (predecessors) 
by  a  good  title.  Thus  the  assise,  says  Glanvill,  was  terminated, 
and  a  contest  made  possible  upon  the  new  matter.  Either  of 
the  parties  might  thereupon  have  another  recognition  upon 
the  question  of  fact  now  brought  in  issue.  In  like  manner 
either  of  the  litigating  parties  might  admit  that  the  other  or 
one  of  his  antccessores  made  the  last  presentation  not  as  of  fee, 
but  as  of  ward,  and  might  lawfully  demand  a  recognition  upon 
this  point. I 

Glanvill  says  that  in  an  assise  of  mort  d'ancestor,  though 
the  tenant  should  concede  the  seisin  of  the  demandant  at  the 
time  alleged,  the  assise  may  still  be  terminated  for  many 
causes.  If,  for  example,  it  should  be  alleged  by  the  tenant 
that  the  demandant  was  seised  after  the  death  of  his  father,  or 

'  Glanvill,  lib.  13,  c.  20,  §§  3,  4. 


THE    ISSUE   TERM.  261 

of  any  one  of  his  ancestors,  and  while  the  demandant  was  in 
such  seisin  that  he  had  done  some  act  to  debar  himself  of  the 
right  to  have  an  assise,  as  if  he  had  sold,  given,  quit- claimed, 
or  otherwise  lawfully  disposed  of  the  land  in  question  to  the 
tenant ;  then  the  assise  should  cnd.i 

What  follows  is  interesting  as  showing  that  an  assise  in 
which  seisin  only  was  in  question  might  terminate  in  a  trial  of 
the  right  of  property.  Should  such  a  defence  as  one  of  those 
just  mentioned  be  set  up  in  bar  of  the  assise,  Glanvill  tells  us 
that  recourse  might  be  had  to  the  duel,  or  to  any  other  usual 
mode  of  proof  consistent  with  the  practice  of  the  court  when 
the  rigJit  to  any  property  is  in  question.  The  same  is  true,  he 
says,  in  case  it  should  be  alleged  by  the  tenant  that  the 
demandant  had,  on  a  former  occasion,  impleaded  him,  when 
a  fine  was  made  between  them  in  the  King's  Court,  or  that  the 
land  belonged  to  the  tenant  by  the  decision  of  the  duel  or  by 
a  judgment,  Villenage  also,  if  pleaded  and  proved  in  court, 
took  away  the  assise.  A  plea  of  bastardy  had  the  same  effect. 
The  king's  charter  also,  in  which  the  land  in  question  had 
been  specifically  named  or  confirmed  to  the  tenant,  terminated 
the  assise  \  a  fact  serving  to  explain  the  provision  of  Magna 
Charta  against  the  right  of  the  king  to  disseise  his  subjects 
without  process  of  law.2 

Again,  if  it  were  conceded  that  the  ancestor  upon  whose 
seisin  the  demandant  founded  his  claim  had  a  certain  limited 
kind  of  seisin,  such  as  one  derived  from  the  tenant  himself  by 
reason  of  a  pledge  or  loan  or  something  of  that  sort,  the 
assise  terminated,  and  some  other  proceeding  followed  suited 
to  the  nature  of  the  new  matter.^  Consanguinity  also  took 
away  the  assise ;  as  where  the  demandant  and  tenant  were 
sprung  from  the  same  stock  from  which  the  inheritance  had 
descended,  the  seisin  of  which  was  in  question,  and  such  fact 
had  been  pleaded  and  proved  in  court.  So  of  a  case  which 
showed  that  the  demandant's  title  had  been  derived  through 

'  Glanvill,  lib.  13,  c.  11.         "  Ibid.    See  ante,  pp.  155,  156.         '  Glanvill,  siipra. 


262  HISTORY    OF   PROCEDURE. 

a  gift  by  the  eldest  son  to  a  younger  son,  who  had  died  with- 
out leaving  an  heir  of  his  body ;  since  the  same  person  could 
not  be  both  heir  and  lord  of  an  estate.  The  same  was  true 
on  proof  that  the  demandant  was  formerly  in  arms  against 
the  king.  I 

The  Rotuli  Curiae  Regis  contain  many  examples  of  plead- 
ings of  this  kind.  The  following  may  be  presented  :  Pagan  2 
of  L.  brought  a  writ-^  of  novel  disseisin  against  William  M.  of 
his  frank  tenement  in  B.,  and  William  M.  comes  and  says  that 
the  king  gave  to  him  all  the  lands  and  all  the  rights  of  earl 
Richard  de  S.,  with  the  son  and  heir  of  earl  Richard,  and 
when  he  came  and  received  the  homage  of  the  free  tenants 
of  fee  of  that  honour,  no  one  appeared  for  that  fee  (claimed  by 
the  plaintift")  and  he,  William,  caused  the  said  Pagan  to  be 
summoned  upon  that  fee  once  and  again  and  a  third  time  to 
come  and  do  to  him  what  he  ought  to  do,  and  he  came  not 
nor  sent  anyone  for  himself,  and  by  consideration  of  his 
(defendant's)  court  that  fee  was  distrained  for  want  of  chattels 
thereon.  (Replication,  apparently  after  some  interval,  in 
which  the  action  is  shifted  to  meet  the  plea,  the  recognition 
terminating  :)  And  the  son  of  Pagan,  put  in  place  of  his 
father,  comes  and  says  that  when  he  knew  that  that  fee  was 
taken  in  the  hand  of  the  said  William  M.,  he  (the  son  of 
Pagan)  went  to  him  and  sought  the  fee  by  replevin  and  could 
not  have  it,  and  he  says  that  he  ought  not  to  hold  that  fee 
of  the  said  William  but  of  Ralph  de  la  K.,  and  vouches  him 
to  warranty,  and  still  seeks  the  fee  by  replevin.  (Judgment) 
let  him  have  it  by  replevin.     And  day  is  given  them  on  the 

day  of  St. in  fifteen  days,  at  Westminster,  to  have  then 

his  warranty. 

The  cases  in  the  Rotuli,  however,  usually  begin  with  a 
statement  of  the  appearance  of  the  assise,  come  to  give  a 
verdict,  as  in  the  following :    The    assise*^  comes  to   report 

'  Glanvill,  lib,  13,  c.  il.  *  I   Rotuli,  62,  anno  1194* 

3  "Tulit  lirevem  "  was  used,  it  seems,  in  a  literal  sense  at  this  time. 
*  I  Rotuli,  74,  75,  amto  1194. 


THE    ISSUE   TERM.  263 

("rccognosccre")  if  Geoffrey,  son  of  Peter,'  disseised  unjustly 
and  without  a  judgment  the  abbot  of  W,  of  his  frank  tene- 
ment in  W.  after  the  first  coronation  of  the  king.  Geoffrey 
says  that  the  assise  ought  not  to  be  had  thereon,  because 
when  the  king  gave  the  land  of  earl  William  de  M.  the  said 
Geoffrey 2  had  that  land  in  his  own  hand,  and  he  gave  it  to 
him,  and  he  made  his  charter  to  him  to  that  effect,  which  he 
offered,  that  what  he  has  pertains  thereto,  and  that  he  had 
seisin  of  that  land  by  writ  of  the  chancellor,  then  justiciar, 
directed  to  O.,  son  of  William,  then  sheriff  of  Essex,  who 
gave  him  seisin  thereof.  The  abbot  says  that  Geoffrey  had 
seisin  in  the  land  of  the  said  earl  William  at  the  feast  of 
St.  Peter  ad  Vincula,  and  that  the  said  Geoffrey  afterwards 
disseised  them  (the  abbot  and  earl  William  ?),  and  of  this  he 
puts  himself  upon  an  assise.  The  assise  is  deferred  until 
the  octaves  of  St.  Hilary,  at  Westminster,  and  then  let  the 
parties  come  to  hear  their  judgment,  and  let  the  assise  not 
come. 

The  following  pleadings  in  an  assise  de  ultima  pr^senta- 
tione  are  of  the  same  year  (1194):  The  assise  ^  comes  to 
report  v/hat  patron  in  time  of  peace  presented  the  last  parson 
to  the  church  of  T.,  which  is  vacant,  as  is  said,  the  advowson 
of  which  John  de  T.  claims  against  the  abbess  and  nuns  of 
St.  Edward.  The  abbess  comes  and  says  that  the  assise 
ought  not  to  be  had  thereof,  because  the  writ  says  that  legal 
and  free  men  of  the  vill  of  T.  only  should  be  recognitors  .in 
this  assise,  and  the  men  are  not  of  the  vicinage,  as  they  all 
are  men  of  the  said  John  who  demands  the  assise.  It  was  con- 
sidered that  the  assise  thereof  terminate,  and  that  John  have 
a  writ  which  speaks  of  men  of  the  vicinage  of  T.,4  and  cause 
an  assise  to  come  at  the  feast  of  St.  Hilary,  in  fifteen  days, 

'  Was  this  the  justiciar,  Geoffrey  FitzPeter? 

'  There  is,  apparently,  an  error  in  the  MS.  here,  which  says  "  ipsi,"  and  the 
real  meaning  is  not  certain.  ^  i  Rotuli,  65. 

*  This  refers  to  the  writ  of  enrolment  of  the  names  of  the  recognitors,  not  to 
the  original  writ,  which  was  good. 


264  HISTORY   OF   PROCEDURE. 

at  Westminster.  The  abbess  puts  in  her  place  Gilbert,  son 
of  W,,  to  gain  or  lose,  if  she  were  not  able  to  be  present. 

Another  case  of  the  last  presentation,  in  which  the  recog- 
nitors are  allowed  to  answer,  anno  1198:  The  assise^  comes 
to  report  what  patron  in  time  of  peace  presented  the  last 
parson,  who  is  dead,  to  the  church  of  B.,  which  is  vacant,  as  is 
said,  the  presentation  of  which  Philip  de  B.  claims  against  the 
prior  of  L.  The  jurors  say  that  Walter,  son  of  P.,  made  the 
last  presentation  to  that  church,  in  the  time  of  king  Stephen, 
and  that  he  created  the  first  and  last  parson.  It  was  con- 
sidered that  Philip  have  his  presentation,  and  that  the  prior 
seek  his  (writ  of)  right  if  he  wished. 

An  example  of  the  pleadings  in  an  assise  of  mort  d'an- 
cestor  may  be  seen  in  the  following  case  of  the  same  year  : 
The  assise 2  comes  to  report  if  William,  father  of  J.,  was 
seised  in  his  demesne  as  of  fee  of  two  carucates  of  land,  with 
pertinents,  in  T.,  on  the  day  of  his  death,  and  if  he  died  after 
the  first  coronation  of  king  Henry,  father  of  our  lord  the  king, 
and  if  the  said  J.  is  his  nearest  heir ;  which  land  Thomas,  son 
of  W.  de  M.,  holds.  And  the  said  Thomas  comes  and  says 
that  the  assise  ought  not  to  be  had  thereof,  because  the  said 
J.  and  his  \)Xo\X\^'i  prwiogeiiitus  impleaded  the  said  Thomas  of 
the  said  land  by  a  writ  of  right ;  so  that  by  that  plea  the  said 
piece  of  land  remained  to  them,  and  afterwards  they  took  for 
the  said  land  two  marks  of  silver  and  one  "  chazurum,"  and 
this  he  offers  to  prove  against  him  as  (required)  by  the  con- 
sideration of  the  court,  but  he  offered  no  proof  And  J.  comes 
and  defends  that  he  had  no  brother  priviogenitiis  lawfully 
born,  and  that  he  never  in  any  court  quit-claimed  that  land, 
nor  received  two  marks  or  any  money  for  it,  and  this  he  offers 
to  prove  by  his  certain  freeman.  And  Thomas  said  nothing 
against  that  defence  or  offered  anything,  nor  produced  a 
sccta  that  the  said  J.  had  a  brother  pri)nogcnitiis,  nor  any 
court  in  which  there  was  a  plea  between  them,   nor  (said) 

'  I  Roluli,  141.  "  lb.  139. 


THE   ISSUE   TERM.  265 

when  any  fine  was  made  between  them.     It  was  considered 
that  J.  have  his  seisin  thereof. 

In  the  following  case  of  the  same  kind,  anno  1198,  the 
tenant  disposes  of  the  assise  as  to  himself  by  a  voucher  to 
warranty :  The  assise '  comes  to  report  if  William,  father  of 
Richard,  was  seised  in  his  demesne  as  of  fee  of  three  acres  of 
land,  with  pertinents,  in  Milton  on  the  day  of  his  death,  and  if 
he  died  after  (the  king's)  coronation  ;  which  land  Gilbert,  son 
of  A.,  holds.  Gilbert  comes  and  vouches  to  warranty  thereof 
William,  son  of  R.  de  C.,  by  his  charter  which  he  has  and 
keeps  of  his  gift  and  warranty.  Day  is  given  them  at  Green- 
wich on  the  morrow  of  St.  Leonard.  The  same  day  is  given 
(to  the  assise)  to  report. 

A  double  voucher  to  warranty  may  be  seen  in  an  assise  of 
novel  disseisin  by  Ralph  C.  against  William,  son  of  A.^  The 
assise  having  come  to  make  answer,  William  comes  and  says 
that  he  holds  that  tenement  of  Richard  T.  for  a  term,  and 
vouches  him  thereof  to  warranty,  who  comes  and  warrants  (it) 
to  him,  and  says  that  the  assise  ought  not  to  be  had  thereof 
because  the  said  Ralph  is  a  villein,  and  that  the  abbot  of 
St.  Albans  recovered  him  in  the  County  Court  as  his  villein, 
and  he  vouches  the  county  thereof.  The  county  comes  and 
testifies  this.  Judgment  that  Robert  (a  mistake  for  Ralph) 
take  nothing  because  he  is  a  villein,  and  that  he  be  in  mercy 
for  a  false  claim. 

Both  of  these  cases  go  to  show  that  the  mere  fact  of  a 
voucher  to  warranty  did  not  put  an  end  to  the  assise.  The 
vouchee  is  put  into  the  place  of  the  party  vouching,  and  the 
assise  stands  equally  ready  to  report  against  him  ;  who  may 
defend  against  the  answer  of  the  recognitors  in  the  same 
manner  as  if  he  were  the  tenant. 

Voucher  to  warranty,  or  invoking  the  defence  of  a  legal 
'•  auctor"  in  reply  to  an  action  for  the  recovery  of  property  in 
specie  was  probably  a  primitive  proceeding  of  Germanic  law. 

'   I  Rotuli,  105.  "^  lb.  153,  154. 


266  HISTORY   OF   PROCEDURE. 

It  is  certainly  general  to  the  Germanic  codes  which  succeed 
the  Lex  Salica.  Its  application  in  the  earliest  times,  before 
land  had  become  the  subject  of  property  among  the  Teutonic 
peoples,  however,  must  have  been  chiefly  confined  to  actions 
for  the  recovery  of  personalty.  In  the  period  of  which 
we  are  writing,  as  well  as  for  centuries  before,  vouching  to 
warranty  was  practised  alike  in  actions  for  the  recovery  of 
realty  and  of  personalty.  The  object  of  the  proceeding  in 
either  case,  as  against  the  claimant,  was  to  free  the  defendant 
from  the  consequences  of  the  alleged  theft  in  the  case  of 
personalty,  and  of  a  wrongful  occupation  in  the  case  of  realty. 
If  the  vouching  was  successful,  the  defendant  was  saved  a 
mulct  for  wrongdoing.  The  object  as  against  the  vouchee 
was^  in  case  the  voucher  received  the  property  in  question 
from  him  by  a  purchase,  to  require  him  to  protect  the  defen- 
dant in  his  possession,  or,  on  failure  so  to  do,  to  compel  the 
vouchee  to  make  him  good  with  other  property,  if  possible,  of 
the  same  value. 

Glanvill  has  set  out  the  procedure  in  vouching  to  warranty 
of  land,  in  his  third  book.  It  was  as  follows  :  The  presence 
of  another  party,  he  there  says,  becomes  no  less  necessary  than 
that  of  the  tenant,  if  the  tenant  declare  in  court  that  the  pro- 
perty in  dispute  is  not  his  own,  and  that  he  holds  it  merely  as 
a  loan,  or  as  hired,  or  as  a  pledge,  or  as  committed  to  him  in 
custody  ;  or  if  he  allege  that  the  property  is  his  own,  but 
that  he  has  a  warrantor  from  whom  he  received  it,  whether  as 
a  gift,  or  sale,  or  in  exchange,  or  the  like.  If  the  tenant  took 
the  latter  course,  the  warrantor  was  to  be  summoned  (as  would 
be  true  also  under  the  former  course),  and  the  plea  commenced 
anew  against  him.  The  tenant,  however,  was  to  have  a  reason- 
able time  allowed  him  to  bring  the  vouchee  into  court ;  and 
besides  he  was  allowed  three  essoins  as  to  himself  and  as  many 
as  to  his  warrantor.  When  the  vouchee  now  appeared,  he 
might  plead  in  the  same  manner  as  the  tenant  had  done  ;  he 
might  declare  that  the  property  belonged,  or  had  belonged  to 


THE    ISSUE   TERM.  267 

him,  or  the  contrary.  In  the  latter  case,  the  tenant,  who  had 
falsely  asserted  that  it  belonged  to  him,  should  thereby  lose 
the  land  irretrievably,  and  be  summoned  to  appear  in  court 
and  hear  his  judgment. 

If  the  vouchee  took  upon  himself  the  warranty,  he  became 
thereupon  a  principal  party  in  the  suit,  and  the  remainder  of 
the  cause  was  carried  on  in  his  name,  and  proceeded  just  as  if 
he  were  the  original  defendant.  He  might  himself  vouch 
another  to  warranty  or  claim  the  property  as  his  own  by 
manufacture  or  rearing,  according  to  its  nature.  If  he  declined 
to  assume  the  warranty,  the  property,  as  has  been  stated, 
was  adjudged  to  the  demandant ;  and  the  plea  of  warranty 
now  proceeded  between  the  voucher  and  the  vouchee.  The 
matter  might  thus  come  to  the  decision  of  the  duel  if  the 
tenant  were  prepared  with  a  lawful  witness  to  make  proof, 
who  was  willing  to  undertake  it;  or  if  the  tenant  had  a  charter, 
the  case  could  be  decided  by  that.  If  the  tenant  now  pre- 
vailed, the  vouchee  was  bound  to  give  him  an  equivalent  to 
the  property  lost,  supposing  the  vouchee  possessed  the  means. 

If  it  happened  that  the  warrantor  failed  to  appear  at  the 
summons  of  the  defendant,  the  latter  had  a  wi'it  directing  the 
sheriff  to  summon  him.  The  warrantor  might  now  essoin 
himself  until  the  fourth  day,  when  he  was  bound  to  appear 
or  send  an  attorney.  If  he  did  neither,  the  tenement  was 
taken  into  the  king's  hand,  notwithstanding  the  hardship  (not 
overlooked  by  Glanvill)  to  the  tenant  who  was  not  yet  in 
default. 

It  was  always  advisable  for  the  tenant  to  vouch  his 
warrantor,  for  otherwise,  if  he  took  it  upon  himself  entirely  to 
dispute  the  demandant's  claim,  whether  by  the  duel  or  by  the 
Grand  Assise,  as  he  might  do  without  his  warrantor,  and 
failed,  he  could  make  no  claim  against  the  warrantor. 

Sometimes  the  demandant  claimed  the  land  as  the  fee  of 
one  lord  and  the  tenant  as  the  fee  of  another.  In  such  a  case 
both  the   lords  were  to   be  summoned  into  court,  that  no 


268  HISTORY   OF   PROCEDURE. 

injustice  might  be  done  them  in  their  absence.  They  also  had 
their  three  essoins,  after  which  they  must  appear  or  send  an 
attorney  ;  otherwise,  in  the  absence  of  the  tenant's  lord,  the 
case  proceeded  without  him.  The  result  was  that  if  the  tenant 
then  prevailed,  he  was  now  to  hold  of  the  king  for  the  default 
of  his  lord  until  the  latter  made  good  his  default.  If  the  lord 
of  the  demandant  finally  absented  himself  after  his  essoins 
were  exhausted,  or  without  essoining  himself,  it  became  a 
question  what  should  be  done.  Glanvill,  however,  says  that 
if  he  had  essoined  himself,  the  essoiners  should  be  taken  into 
custody  and  the  demandant  himself  attached  for  his  contempt 
of  court,  and  thus  compelled  to  appear  and  excuse  himself  if 
he  could. 

If  the  lords  both  appeared  in  court,  the  tenant's  lord  took 
the  place  of  the  tenant  in  the  pleading,  in  case  he  assumed 
the  warranty,  or  he  entrusted  his  case  to  the  tenant,  as  he  was 
disposed.  If  the  lord  declined  the  warranty,  the  tenant  lost 
the  land,  and  the  lord  lost  the  latter's  services.  So,  too,  the 
matter  might  be  interpleaded  between  the  tenant  and  his  lord, 
provided  the  tenant  declared  that  his  lord  had  unjustly  failed 
of  the  warranty  ;  unjustly  for  this  reason  (as  his  complaint 
proceeded  to  state)  because  he  or  his  ancestors  had  performed 
such  and  such  services  to  the  lord  or  his  ancestors,  as  lords 
of  that  fee,  adding  that  of  this  fact  he  had  those  who  had 
heard  and  seen  it,  and  in  particular  a  competent  witness  to 
prove  it,  or  some  other  sufficient  testimony  ready  to  be  adduced 
as  the  court  should  direct. 

A  similar  proceeding  prevailed  as  to  the  demandant's  lord. 
If  he  assumed  the  demandant's  warranty,  he  could  take  up 
the  cause  or  leave  it  to  the  demandant.  If  he  declined  to 
warrant  the  claim  of  the  demandant,  the  latter  was  to  be 
amerced  to  the  king  for  a  false  claim. 

It  should  be  added  that  at  this  time  the  right  of  voucher 
did  not  depend  upon  the  existence  of  any  actual  warranty  in 
the  modern  sense.     It  arose  upon  the  mere  ground  of  lawfully 


THE    ISSUE   TERM.  269 

(i.e.  innocently)  receiving  property  from  another  ;  the  person 
who  delivered  it  to  an  innocent  party  being  always  bound  to 
protect  that  party  in  respect  of  his  possession.  This  was  the 
meaning  of  warranty  from  the  earliest  times  until  long  after 
the  Anglo-Norman  period.  It  was  perhaps  a  survival  of  the 
ancient  notion  of  warranty  that  always  found  a  warranty 
implied  in  the  "  dedi "  of  a  feoffment. 

The  proceeding  by  which  a  tenant  put  himself  upon  the 
king's  Grand  Assise,  to  test  the  right  of  property  by  a  jury, 
instead  of  by  the  duel,  was  accompanied  by  a  writ  in  which 
the  sheriff  was  commanded  to  prohibit  the  demandant  from 
subsequently  impleading  him  in  the  local  court,  when  the 
cause  had  been  instituted  there  as  by  a  writ  of  right. ^  The 
election  of  the  assise  is  shown  by  the  following  case,  as 
well  as  by  Glanvill :  Roger,  son  of  E.,2  Albric  de  H.,  Luke 
de  L.,  and  William  dc  P. — summoned  to  elect  twelve  knights 
of  the  vicinage  of  T.  for  making  a  Grand  Assise  of  one 
carucate  of  land,  with  pertinents,  in  T.,  which  H.,  bishop  of 
Exeter,  claimed  against  Robert  B.  and  Emma,  his  wife,  as 
to  which  Robert  and  Emma,  his  wife,  put  themselves  upon  a 
Grand  Assise,  and  demanded  record  to  be  made  thereof 
whether  the  said  bishop  had  the  greater  right  of  holding  that 
land  in  demesne,  or  they  (to  hold)  of  him — came  and  elected 
the  following  (here  are  given  the  names  of  twenty  knights 5). 
A  day  is  given  them  at  the  advent  of  the  justiciars  in  those 
parts.  Emma  puts  in  her  place  Robert,  her  husband,  thereof 
to  gain  or  lose. 

What  happened  in  case  of  the  non-appearance  of  the 
tenant  by  the  fourth  day,  for  the  election  of  the  Grand  Assise, 
may  be  seen  by  the  following  case  of  the  year  1 198 :  Geoffrey,^ 
son  of  S.,  and  Agnes,  his  (G.'s)  wife,  plaintiffs,  offer  themselves 

'  Glanvill,  lib.  2,  c.  8.   See  App.  No.  56.    =  i  Rotuli,  140 ;  Glanvill,  lib.  2,  c.  1 1. 

3  This  is  explained  by  Glanvill,  who  says  that  it  was  usual,  in  the  absence  of 
the  tenant  from  the  election,  not  to  confine  the  number  to  twelve,  but  to  elect  as 
many  more  as  would  certainly  satisfy  the  absent  tenant  upon  his  return  to  court. — 
Lib.  2,  c.  12,  §  2.  ■♦  I  Rotuli,  199. 


270  HISTORY   OF  PROCEDURE. 

on  the  fourth  day  against  Richard  B.  and  Lccia,  his  wife, 
tenants,  of  a  plea  of  electing  twelve  knights  for  making  a 
Grand  Assise  of  half  a  virgate  of  land,  with  pertinents,  in  B., 
as  to  which  the  said  Richard  and  Lecia,  tenants^  put  theni- 
selves  upon  the  Grand  Assise  of  our  lord  the  king,  and 
demanded  a  recognition  to  be  had  thereof  whether  they  had 
the  greater  right  in  that  land  or  the  said  Geoffrey  and  Agnes. 
Richard  afterwards  comes  and  defends  all  summons  for  him- 
self and  for  his  wife,  who  came  not  nor  essoined  herself.  Judg- 
ment, let  Richard  wage  his  law  with  the  twelfth  hand  at 
Greenwich,  and  let  Lecia  be  summoned  that  she  be  there  to 
show  why  she  did  not  keep  the  day  given  her  in  the  advent  of 
the  justiciars  in  Essex.  The  same  day  is  given  to  Geoffrey 
and  Eustace,  son  of  E.,  "  in  banco,"  and  Ralph  de  O.  by  his 
essoiner,  and  Robert  of  L.  is  attached  to  be  there  then  to 
show  why  he  did  not  keep  his  day,  and  for  electing  the  twelve 
knights  together  with  the  said  three  knights. 

The  following  case  shows  the  result  of  a  default  of  the 
demandant  at  the  time  for  electing  the  Grand  Assise  :  Emma 
de  R.^  offers  herself  on  the  fourth  day  (after  the  day  for  the 
election)  against  Robert  de  B.  concerning  a  plea  of  the  Grand 
Assise  of  four  carucates  of  land,  with  pertinents,  in  R.,  and 
he  came  not  nor  essoined  himself,  and  he  was  demandant. 
Judgment,  let  her  go  quit,  and  Robert  be  in  mxrcy  for  his 
default. 

These  cases  furnish  occasion  to  remark  upon  a  difference 
which  prevailed  in  respect  of  the  election  of  the  assise  in 
possessory  actions  and  in  the  Magna  Assisa.  In  both  cases 
the  election  is,  indeed,  held  at  the  instance  of  the  demandant ; 
but  the  situation  is  wholly  dissimilar  in  them.  In  the  posses- 
sory recognitions  it  is  the  demandant  who  has  sought  the 
assise  ;  and  he  is  therefore  expected  to  be  present,  while  the 
tenant  must  be  formally  summoned.  In  the  case  of  the  Grand 
Assise,  however,  it  is  the  tenant,  ordinarily,  who  has  sought 
'  I  RoUili,  334,  a'lno  1199. 


THE    ISSUE   TERM.  271 

the  recognition  ;  and  it  would  seem  that  he  should  be  ex- 
pected to  be  present  at  the  election,  and  that  the  demandant 
should  be  summoned.  On  the  contrary,  however,  as  we  have 
just  stated,  the  demandant  calls,  not  indeed  for  the  assise,  but 
for  the  election  ;  and  the  tenant  must  be  summoned  as  in  the 
other  case.  The  proceeding  is  this :  The  tenant  (e.g.  in  a 
writ  of  right)  puts  himself  upon  the  Grand  Assise,  and  then 
sues  out  process  of  prohibition  against  proceedings  in  the 
local  court.  He  is  then  protected  until  the  demandant  appears 
in  court  and  prays  a  writ  requiring  the  election  of  the  assise 
by  the  four  knights. i  This  writ  (like  the  writ  in  the  possessory 
recognitions)  requires  also  the  summons  of  the  tenant  to  be 
present  at  the  election. 2  Another  difterence  now  appears. 
The  absence  of  the  tenant  from  the  possessory  recognitions, 
it  will  be  remembered,  had  not  the  effect  of  postponing  the 
election  ;  no  essoin  being  allowed.  But  in  the  Magna  Assisa, 
owing  probably  to  the  greater  significance  of  the  trial,  essoins 
were  allowed  the  tenant  to  the  number  of  four  by  the  old 
practice,  and  to  the  four  knights  also  there  might  be  at  least 
one  essoin.  Glanvill,  however,  tells  us  that  a  law  had  been 
passed  by  v,4iich  the  court  was  authorised,  in  its  discretion,  to 
expedite  the  cause,  and  permit  the  election  to  proceed  on  the 
appearance  of  the  four  knights,  whether  the  tenant  were 
present  or  not.^  It  may  be  added  that  the  four  persons  named 
at  the  close  of  the  last  case  but  one  appear  to  be  the  four 
knights.  The  failure  of  the  demandant  to  appear  at  the 
election,  it  may  also  be  noticed,  would  result  in  leaving  the 
tenant  in  lawful  possession,  protected  as  he  would  be  by  his 
writ  of  prohibition.  Whether  the  demandant  could  essoin 
himself  from  the  election  is  not  stated.  He  might  essoin 
himself  from  the  return-day  of  the  assise ;  though  the  tenant 
could  not.4 

The  following  is  a  return  of  the  Grand  Assise :  The  Grand 

'  Glanvill,  lib.  2,  c.  10.   Sometimes  there  were  six  or  more  instead  of  four.   lb. 
'  lb.  c.  12.  3  ibiJ.  4  lb.  c.  16. 


272  HISTORY   OF  PROCEDURE. 

Assise!  comes  to  report  if  Wido  de  O.,  tenant,  has  the  greater 
right  of  holding  two  virgates  of  land,  with  pertinents,  in  (a 
cause  in)  the  court  of  Baldric,  son  of  B.,  who  claims  them 
against  him  by  a  writ  of  right,  or  Baldric  (holds  them)  in 
demesne.  The  jurors  say  that  Wido  has  greater  right  of 
holding  that  land  of  him  than  Baldric  in  demesne.  Judgment 
that  Wido  hold  in  peace  and  Baldric  be  in  mercy  for  a  false 
claim,  and  receive  the  homage  of  Wido  thereof  in  his  court. 

The  tenant  might  object  to  the  return  of  the  Grand  Assise 
as  well  as  to  that  of  a  common  assise.  It  was  a  valid  objec- 
tion, for  instance,  that  the  parties  were  of  the  same  blood  and 
sprung  from  the  same  kindred  stock  from  whence  the  inherit- 
ance (supposing  the  suit  to  relate  to  land)  itself  descended.  If 
the  demandant  took  this  objection,  the  tenant  must  have 
admitted  or  denied  it.  If  he  admitted  it,  the  right  to  an  assise 
was  lost.  A  question  then  arose  for  determination  within  the 
court,  as  Glanvill  tells  us,  which  of  the  parties  was  the  nearer 
to  the  original  stock.2 

The  statement  by  Glanvill  which  follows  is  also  interesting 
as  bearing  upon  a  subject  already  considered,  the  burden  of 
proof.  One  of  the  parties  having  shown  to  the  court  upon 
legal  inquiry  that  he  was  the  nearer  to  the  original  stock,  he  was 
entitled  to  furnish  proof  of  his  title,  unless  his  adversary  could 
allege  some  good  reason  why  the  party  had  lost  his  supposed 
right,  whether  for  a  time  or  for  ever,  or  show  that  his  ancestor 
had  done  so ;  as  by  a  gift,  sale,  or  exchange  of  the  land.^  The 
proof  belonged  to  the  party  who  had  made  the  last  good 
allegation.  If  the  adverse  party  set  up  any  fact  sufficient  to 
repel  the  presumption  of  title  raised  by  the  evidence  of  near- 
ness of  kin,  the  matter  might  by  force  of  the  pleadings  be 
determined  by  the  duel.'* 

'  I  Rotuli,  329,  anno  1199. 

*  According  to  Beames,  Glanvill  even  calls  this  a  question  of  law  (Bcames's 
Glanv.  p.  51);  but  that  is  a  mistranslation.  The  expression  is  "tunc  legitime 
inquiretur,"  which  of  course  only  means  that  the  matter  shall  be  lawfully  examined, 

3  Glanvill,  lib.  2,  c.  6.  "  Ibid. 


THE    ISSUE   TERM.  273 

If  the  party  who  had  put  himself  upon  the  assise  denied 
all  relationship  between  himself  and  the  demandant,  or  if  he 
insisted  that  they  were  not  sprung  from  the  same  stock  from 
which  the  inheritance  descended,  recourse  was  to  be  had  to 
the  common  kindred  of  both  parties,  who  were  to  be  called 
into  court  to  give  testimony  upon  the  point  in  issue.  If  the 
relatives  agreed  in  affirming  that  the  parties  were  descended 
from  the  same  stock  from  whence  the  inheritance  came,  this 
was  conclusive ;  unless  the  party  against  whom  they  had 
decided  persisted  in  his  assertion.  In  that  case  recourse  was 
to  be  had  to  the  vicinage,  whose  testimony,  if  on  the  same 
side  with  that  of  the  neighbours,  was  decisive.  If  there  was 
a  disagreement  of  the  relatives,  recourse  to  the  vicinage  was 
necessary ;  and  the  parties  were  to  abide  by  the  verdict 
given. I 

The  inquisition  having  been  made,  if  the  parties  were 
found  to  have  sprung  from  the  same  stock  from  which  the 
inheritance  came,  the  assise  was  at  an  end,  and  the  question 
proceeded  as  has  been  stated  supra,  in  speaking  of  the  burden 
of  proof  If  the  contrary  were  found,  the  demandant  who  had 
taken  the  objection  to  the  assise  lost  his  suit.  If,  however, 
nothing  intervened  after  the  defendant  had  put  himself  upon 
the  king's  assise,  the  question  of  right  was  settled  as  effectually 
as  it  could  be  settled  by  the  duel.- 

Suit  could  be  instituted  in  the  popular  courts,  and  as  yet 
in  the  Eyre,  after  the  ancient  practice,  without  a  writ ;  and 
when  so  instituted,  even  in  a  cause  embraced  within  the  scope 
of  the  recognitions,  pleadings  were  necessary  at  the  outset. 
But  now,  if  the  cause  were  one  proper  for  a  recognition,  the 
tenant  had  the  right  to  put  himself  upon  an  assise  of  the 
neighbourhood,  if  the  demandant  did  not  elect  an  allowable 
mode  of  trial ;  and  this,  too,  without  putting  himself  upon  the 
Grand  Assise.  This  is  a  most  interesting  phase  of  the  proce- 
dure.    Cases  of  this  kind  show   the  adjustment  of  the  new 

'  Glanvill,  lib.  2,  c.  6.  =  Ibid. 

T 


274  HISTORY   OF   PROCEDURE. 

procedure  of  Henry  the  Second  to  the  ancient  procedure  of 
the  khngxlom.  The  old  plaint  is  retained,  and  with  it  the  old 
plea  ;  the  latter  being  supplemented  with,  or  changed  at  the 
conclusion  by,  a  demand  for  a  recognition. 

The  following  is  an  example  of  this  mode  of  pleading  : 
Joanna,'  who  was  wife  of  Henry  de  L.,  complains  that 
Reginald  de  B.  disseised  her  of  half  a  virgate  of  land,  with 
the  pertinents,  in  L.,  after  the  justiciars  itinerant  w^ere  last  in 
those  parts.  And  Reginald  comes  and  defends  that  he  did 
not  disseise  her  thereof,  as  she  says,  and  of  this  he  puts  him- 
self upon  a  jury  of  the  neighbourhood.  And  the  said  Joanna 
in  like  manner  puts  herself  upon  a  jury  of  the  neighbourhood. 
Day  is  given  them  for  receiving  the  assise  in  the  octaves  of 
St.  Hilary,  at  Westminster. 

The  significance  of  the  pleadings  in  this  case  cannot  be 
overlooked.  The  plaint  and  plea  are  so  suggestive  of  later 
pleading  that  the  evidence  of  the  record  itself  is  necessary  to 
assure  a  lawyer  of  the  present  day  that  it  is  of  the  time  of 
Richard  the  First ;  and  on  the  other  hand  there  is  good 
reason  to  believe  that,  apart  from  the  tenant's  act  of  putting 
himself  upon  a  recognition,  the  pleadings  were  not  different 
from  those  of  the  time  of  the  Conqueror  or  of  his  prede- 
cessors. The  teaching  of  this  case,  as  to  the  continuation  of 
the  ancient  formulre,  in  connection  with  the  new  process, 
might  probably  be  enforced  by  other  records  of  a  like  nature. 
The  following  example  of  (it  seems)  the  ancient  procedure 
in  a  case  of  disseisin,  in  which  the  new  process  makes  no 
appearance,  may  be  referred  to  :  Moses,^  who  was  prior  o 
Coventry,  and  the  convent  of  the  said  place  seek  their  seisin 
of  the  barony  of  Coventry,  which  he  (M.)  held  in  the  time 
of  king  Henry,  father  of  king  Richard,  and  after  the  first 
coronation  of  king  Richard,  and  of  which  they  were  ejected, 
after  the  first  coronation  of  king  Richard,  by  force  and  with- 

i  '   I  Rotuli,  55,  anno  1 194. 

*  lb.  3,  anno  U94;  Abbrcviatio  Pkcitovum,  5. 


THE   ISSUE   TERM.  275 

out  judgment,  against  the  canons  of  Coventry,  and  whereof  the 
said  prior  did  homage  to  our  lord  the  king.  And  the  canons 
came  and  said  that  they  did  not  hold  (any)  of  the  barony 
unless  in  frankalmoign,  and  if  they  held  anything  of  that 
barony,  that  was  in  the  hand  of  another  and  not  in  theirs. 
And  because  they  hold  nothing  unless  in  frankalmoign,  they 
demand  a  trial  in  the  Court  Christian,  and  are  not  willing  to 
answer  thereof  unless  in  the  Court  Christian,  by  the  considera- 
tion of  the  court.  Day  is  given  them  on  the  sabbath  next 
after  the  feast  of  St.  Edward,  in  fifteen  days,  at  Westminster, 
to  hear  their  judgment. 

The  plea  to  the  jurisdiction  appears  to  have  been  over- 
ruled, for  the  Rotuli  contain  another  entry,  within  six  weeks, 
of  the  appearance  of  an  assise  to  report  whether  the  de- 
fendants had  unjustly  and  without  a  judgment  disseised  the 
plaintiff.^  The  defendants  must  therefore  have  put  them- 
selves upon  a  jury,  after  the  plea  to  the  jurisdiction  was 
overruled,  as  in  the  preceding  case  supra,  or  the  pleadings 
which  we  have  just  quoted  must  have  been  had  under  a  writ 
of  novel  disseisin,  on  the  appearance  of  the  assise ;  of  which 
there  is  no  evidence,  and  against  which  the  presumption  from 
the  record  is  strong.  A  writ  of  novel  disseisin,  however,  may 
have  been  obtained  by  Moses  after  the  foregoing  pleadings  ; 
but  it  would  be  difficult  to  understand  the  step. 

These  records  illustrate  the  pleadings  in  real  property 
actions  of  the  last  half  of  the  twelfth  century.  It  remains  to 
present  examples  of  the  pleadings  in  appeals  of  robbery, 
assault  and  battery,  trespass  to  property,  and  demands  of 
debt.  In  these  will  be  found  the  originals  of  such  of  the 
like  common  actions  of  modern  times  as  antedate  the 
Statute  of  Westminster  II.  {anno  1285),  under  which  actions 

'  I  Rotuli,  66 ;  Abbrev.  Plac.  5.  The  first  pleading  in  the  Abbrev.  Plac. 
closes  with  a  statement  that  pledges  were  given  by  both  sides,  whicli,  if  given 
after  the  pleading  as  indicated,  would  imply  that  the  suit  was  begun  without  a 
writ.  The  demandant's  pledges  must  Iiave  been  given  before  the  pleading,  if  he 
sued  under  the  recognition  process. 

T    2 


276  HISTORY   OF   PROCEDURE. 

on  the  case  arose  ;  to  wit,  the  various  forms  of  trespass,  and 
the  actions  of  debt,  detinue,  and  covenant.  It  is  hardly 
necessary  to  say  that  actions  for  unliquidated  damages  for 
the  breach  of  promises  to  do  or  not  to  do  acts  not  relating 
to  the  tenure  of  land,  were  as  yet  unknown  to  the  English 
law.  The  pressing  occasion  for  such  actions  had  not  yet 
arisen.  All  obligations  solvable  in  money,  in  chattels,  or  in 
services,  at  this  time  were  real  obligations,  incurred  in  return 
for  a  thing-  received.  Breach  of  contract  of  sale  made  no 
exception  to  this  rule.  The  contract  was  not  enforceable 
without  a  delivery  of  the  property  or  payment  of  the  price 
in  whole  or  in  part  or  the  giving  of  earnest.  Then  the 
property  passed  ;  and  if  it  had  not  been  delivered,  the  pur- 
chaser sued  for  the  possession,  or  the  vendor  for  the  price  if 
it  had  been  delivered.  The  purchaser  who  had  given  earnest 
might,  however,  depart  from  his  engagement  by  abandoning 
the  earnest ;  probably  incurring  a  penalty.'  Breaches  of 
engagement  of  fealty,  not  entered  into  by  reason  of  tenure, 
were  treason. 

In  the  Case  of  Gilbert  de  Plumpton,^  tried  in  the  King's 
Court  anjio  1184,  Glanvill,  perhaps  on  behalf  of  the  king, 
appeals  (or  procures  the  appeal  of)  the  defendant  of  carrying 
off  and  marrying  a  young  heiress  in  the  gift  of  the  king,  and 
of  breaking  several  gates  and  carrying  off  a  hunter's  horn  at 
the  same  time  ;  charging  the  whole  to  have  been  done  in 
larceny  and  robbery.  The  precise  form  of  the  appeal  is  not 
given  in  the  record  ;  but  the  language  preserved  is  technical 
and  doubtless  gives  the  substance  of  the  formula.  Glanvill, 
says  the  record,  was  urgent  that  the  defendant  should  be 
condemned  to  death;  "imponens  illi  quod  ipse  puellam 
quandum  de  donatione  regis,  filiam  R.  de  G.,  rapuit  ct  sibi 
in  uxorcm  retinuit ;  et  quod  per  noctcm  frcgit  sex  portas 
patris  ipsius  puelke,  ct  abstulit  ei  unum  cornu  vcnatorium  et 
unum  capistrum  etc.,  et  pra^dictam  puellam.  Adjccit  etiam 
'  Glanvill,  lib.  10,  c.  14.  =  Placila  Ang.-Norm.  233. 


THE    ISSUE   TERM.  277 

quod  hrcc  omnia  In  latroclnio  ct  roberia  asportavit."  But 
the  said  young  man  "omnia  qua^  ad  vim  ct  latrocinia  et 
roberiam  pertinebant,  modis  omnibus,  defendebat,  et  super 
hoc  se  juri  stare  obtulit." 

The  prototype  of  an  action  of  trespass  de  bonis  aspor- 
tatis  may  be  seen  a  shade  nearer  in  the  case  of  Hubert  of 
St.  O.  V.  Stephen  of  F.,i  an/io  1194.  The  record  states  that 
Hubert  appeals  Stephen  and  others  that  they  came  into  his 
land  at  B.  "  cum  vi  et  armis  et  robberia,"  and  craftily  and 
against  the  king's  peace  carried  off  his  chattels,  to  wit,  turf  to 
the  value  of  sixty  shillings,  and  took  the  same  into  the  court  of 
the  said  William  (one  of  the  defendants)  ;  and  this  he  offers 
to  prove  by  W.  'N.,  who  was  custos  of  the  said  land,  against  the 
said  William  and  by  R.  de  St.  M.  against  Robert  (another 
defendant)  who  saw  him  in  "  in  vi  ilia." 

The  sheriff  testifies  that  he  could  not  find  Stephen  ;  but 
William  comes  and  defends  the  felony  and  robbery  and  every- 
thing word  for  word,  and  says  that  the  turf  which  he  carried 
away  he  carried  away  from  his  own  frank  tenement  and  fee, 
and  not  from  the  fee  of  Hubert.  Hubert  replies  to  the  latter 
part  of  the  plea  that  he  had  dug  and  made  the  turf  after  the 
king  set  out  from  Germany,  freely,  in  peace,  and  without  any 
claim  made  by  William,  but  that  after  the  king  crossed  into 
Normandy,  William  had  carried  it  off.  The  other  defendant, 
Robert,  defends  the  whole  appeal,  word  for  word. 

When  anyone  was  charged  with  the  commission  of  a  high 
crime,  such  as  plotting  sedition  or  the  king's  death,  and  was 
accused  by  the  public  voice,  and  not  by  an  appellor,  he  was 
either  attached  by  proper  pledges  (bail)  or  imprisoned.  Then 
the  truth  was  inquired  of  by  many  and  various  inquisitions 
and  questions  before  the  justiciars,  of  the  men,  no  doubt,  of 
the  vicinage  ;  the  court  taking  into  consideration  the  reason- 
able indications  and  the  suggestions  making  for  and  against 
the  accused.2  jhJs  ^vas  for  the  purpose,  it  seems,  of  deter- 
'  Placita  Ang.-Norm.  285.  -  Glanvill,  lib.  14,  c.  i. 


278  HISTORY   OF   PROCEDURE. 

mining  v/hcthcr  there  was  a  sufficient  presumption  against  the 
party  to  justify  the  court  in  sending  him  to  the  ordeal  ;  to 
which,  when  there  was  no  appellor,  persons  sufficiently  accused 
must  go  if  they  disputed  the  accusation.  The  result  of  the 
inquiries  thus  made  by  the  judges,  if  they  appeared  to  sustain 
the  accusation,  corresponded  to  the  finding  of  che  twelve  legal 
men  or  knights  under  the  Assises  of  Clarendon  and  North- 
ampton, if  indeed  the  inquiries  were  not  prosecuted  by  reason 
of  the  presentation  by  one  of  the  same  bodies  of  men. 

If,  however,  an  appellor  (  "  a  certain  accuser  "  )  appeared 
in  such  a  case,  he  was  to  be  attached  by  pledges  to  prosecute, 
if  he  could  find  pledges  ;  if  not,  he  was  to  be  taken  at  his 
word,  as  was  also  true  in  all  cases  of  pleas  of  felony.  Indeed, 
it  was  the  usual  course  to  trust  to  the  party's  promise  to 
prosecute,  lest  men  should  be  deterred  from  making  accusa- 
tion. The  accused  was  then,  as  in  the  other  case,  attached  by 
pledges  or  cast  into  prison. ^  The  usual  essoins  having  been 
cast,  the  parties  appear,  and  the  accuser  prefers  his  charge;  as 
that  he  had  seen,  or  by  other  mode  approved  in  court  most 
certainly  knew,  that  the  accused  had  plotted  or  done  some- 
thing towards  the  king's  death  or  to  promote  sedition  in  the 
kingdom  or  army,  or  to  have  consented  or  to  have  given 
counsel  or  delegated  authority  towards  such  object,  and  that 
he  was  prepared  to  prove  this  according  to  the  consideration 
of  the  court.  Then  if  the  accused  denied  everything  in  court 
in  legal  manner,  the  issue  went  to  the  decision  of  the  duel, 
unless  the  accused  was  incapacitated  by  sex,  age,  or  mayhem.^ 

The  following  pleadings  in  common  criminal  appeals  are 
from  the  Rotuli  Curing  Regis  : 

William  de  R.3  appealed  Adam  of  T.  that  he  threatened 
him,  and  that  by  him  and  of  his  sending  were  burned  the 
houses  of  Richard,  his  father,  and  their  arms  were  carried  off 

'  In  cases  of  homicide,  pledges  were  not  permitted  :  Glanvill,  lib.  14,  c.  i,  §  4. 
^  lb.  §§  5-8.  See  also  upon  this  subject  Bracton,  Ii8b,  119,  to  the  same  effect. 
3  I  Rotuli,  29,  anno  1 194. 


THE    ISSUE   TERM.  279 

and  the  men  ^\^tllin  the  houses  slain,  to  wit,  Ralph,  the  reeve, 
and  Geoffrey,  a  deacon,  and  a  certain  woman  Lcnio,  and  that 
those  malefactors  who  did  this  deed  came  from  his  house  to 
the  doing  that  deed,  and  to  his  house  returned,  and  this  he 
offers  to  prove  against  him  by  the  consideration  of  the  court, 
by  his  body,  and  he  found  pledge  of  prosecuting  his  appeal, 
to  wit,  Richard,  his  father.  Adam  comes  and  defends  the 
whole,  word  for  word,  according  as  the  court  considered. 

Richard  de  W.^  appealed  Reginald  de  A.  and  Roger^  his 
brother,  and  Henry  de  M.  and  Walter,  a  clerk,  that  they 
willingly  and  being  in  the  peace  of  our  lord  the  king  and  by 
night  and  by  a  premeditated  attack  upon  his  inn  in  his  land 
of  (an  omission),  and  wounded  him  and  broke  his  bones,  and 
carried  off  his  chattels  and  two  of  his  men  murdered,  and 
carried  off  "  in  saccos"  certain  rustics  slain  as  his  men,  and 
this  he  offers  to  prove  against  them  as  a  maimed  man  and  a 
clerk  in  orders,  but  he  showed  no  mayhem.2 

Toui,3  son  of  T.,  appealed  Robert  that  being  in  the  peace 
of  the  king  he  wounded  him  upon  the  head  and  robbed  him 
of  a  cap  of  the  price  of  five  shillings  and  sixpence,  and  offers 
to  prove  (this)  against  him  by  his  body.  Robert  comes  and 
defends  all,  word  for  word.  Day  is  given  them  on  the  day  of 
St.  Martin  ....  and  meanwhile  they  have  license  of  concord. 
And  let  there  be  an  inquisition  in  the  county  whether  the 
wounds  were  reasonably  shown  in  the  county,  as  he  says. 

In  the  following  case  the  appellee,  a  woman,  offers  to 
defend  her  denial  by  the  duel,  if  necessary,  against  one  of  her 
own  sex  ;  who  of  course  would  do  battle  by  champion,  if  the 
duel   were   awarded  by  the  court.      Sarra   de   B.4  appealed 

'  I  Rotuli,  60,  an7to  1 194. 

'  The  meaning  of  this  may  be  that,  besides  wishing  to  avoid  the  duel,  the 
appellor  had  no  witnesses  or  compurgators,  and  attempted  to  make  a  presumptive 
case  against  the  defendant  by  alleging  that  he  had  been  wounded  ;  and  this  would 
have  been  effectual,  had  he  been  able  to  show  the  wounds.  If  he  had  sought 
only  to  escape  the  duel,  it  would  have  been  sufficient  for  him  to  claim  the  privilege 
of  his  order. 

3  I  Rotuli,  316,  anno  1 199.  "•  lb.  77,  atino,  1 194. 


28o  HISTORY   OF   PROCEDURE. 

Constance,  who  was  wife  of  M.,  her  son,  that  by  her  consent, 
and  at  her  instance  and  request,  malefactors  came  to  the 
house  of  WilHam,  her  husband,  and  wounded  her,  so  that  she 
was  made  bloody,  and  they  committed  robbery,  and  she  showed 
the  blood  to  Reginald  and  to  the  archbishop  of  Rouen,  and  this 
she  offers  to  prove  against  her  as  a  free  woman,  as  the  court 
may  consider.  Constance  comes  and  defends  all,  word  for 
word,  by  herself  if  she  ought,  or  by  others  her  free  men,  if  the 
court  so  considered. 

The  Norse  formula  of  notice  of  suit '  in  the  case  of  Mord 
V.  Flosi,  already  stated  as  to  the  preliminary  extrajudicial 
proceedings,  will  close  the  consideration  of  the  subject  of 
criminal  pleadings.  It  was  as  follows  :  Then  Mord  took 
witness  (at  the  Hill  of  Laws,  before  the  Thing)  and  said  : 
'  I  take  witness  to  this  that  I  give  notice  of  an  assault  laid 
down  by  law  against  Flosi,  Thord's  son,  for  that  he  rushed 
at  Helgi,  Njal's  son,  and  dealt  him  a  brain,  or  a  body,  or  a 
marrow  wound,  which  proved  a  death  wound,  and  from  which 
Helgi  got  his  death.  I  say  that  in  this  suit  he  ought  to  be 
made  a  guilty  man,  an  outlaw,  not  to  be  fed,  not  to  be  for- 
warded, not  to  be  helped  or  harboured  in  any  need.  I  say 
that  all  his  goods  are  forfeited,  half  to  me  and  half  to  the 
men  of  the  quarter,  who  have  a  right  by  law  to  take  his 
forfeited  goods.  I  give  notice  of  this  suit  for  manslaughter 
in  the  Quarter  Court  into  which  this  suit  ought  by  law  to 
come.  I  give  notice  of  this  lawful  notice ;  I  give  notice  in 
the  hearing  of  all  men  on  the  Hill  of  Laws ;  I  give  notice  of 
this  suit  to  be  pleaded  this  summer,  and  of  full  outlawry 
against  Flosi,  Thord's  son  ;  I  give  notice  of  a  suit  which 
Thorgeir,  Thorir's  son,  has  handed  over  to  me."  The  formula 
is  then  repeated  with  the  change  of  stating  the  wounds  first 
and  the  assault  second ;  and  the  case  was  then  properly 
before  the  court.  Flosi  listened  carefully  (to  detect  any  flaw), 
but  said  never  a  word  the  while. 

'  The  subsequent  pleadings  arc,  for  convenience,  reserved  for  chapter  Ix. 


THE    ISSUE   TERM.  281 

]\Iany  other  suits  were  then  entered  relating  to  the  same 
feud  and  catastrophe  ;  a  whole  day  being  thus  occupied.  One 
of  these  suits  was  by  Thorgeir  Craggeir,  next  of  kin  of  the 
family  of  Njal,  Avho  thus  declared  :  "  I  take  witness  to  this, 
that  I  give  notice  of  a  suit  against  Glum,  Hilldir's  son,  in 
that  he  took  firing  and  lighted  it,  and  bore  it  to  the  house  at 
Bergthorsknoll,  when  there  were  burned  inside  it,  to  wit,  Njal, 
Thorgeir's  son,  and  Bergthora,  Skarphedinn's  daughter,^  and 
all  those  other  men  who  were  burned  inside  it  there  and  then. 
I  say  that  in  this  suit  he  ought  to  be  made  a  guilty  man,  an 
outlaw,  not  to  be  fed,  not  to  be  forwarded,  not  to  be  helped 
or  harboured  in  any  need.  I  say  that  all  his  goods  are 
forfeited,  half  to  me  and  half  to  the  men  of  the  quarter,  who 
have  a  right  by  law  to  take  his  forfeited  goods ;  I  give  notice 
of  this  suit  in  the  Quarter  Court,  into  which  it  ought  by  law 
to  come.  I  give  notice  in  the  hearing  of  all  men  on  the  Hill 
of  Laws.  I  give  notice  of  this  suit  to  be  pleaded  this 
summer,  and  of  full  outlawry  against  Glum,  Hilldir's  son." 

The  defence  depended  entirely  upon  detecting  error  in 
the  pleading  of  the  plaintiff;  there  being  no  dispute  as  to  the 
facts  or  the  liability  of  the  defendants.  But  no  error  was  to 
be  found,  and  the  cases  now  stood  for  trial,  without  answer. 

Examples  of  pleadings  in  England  in  actions  for  debt 
may  be  seen  in  the  following  cases,  also  from  the  Rotuli 
Curiae  Regis  : 

EHas  de  H.^  demanded  forty  shillings  rent /^r  annwii  in 
K.  and  in  B.  against  J.  de  A.,  which  he  ought  to  pay  him 
annually  on  account  of  a  fine  made  between  the  said  J.  and 
Thomas,  father  of  Elias,  in  the  court  of  king  Henry,  father 
of  our  lord  the  king,  for  six  bovates  of  land  and  for  a  mill  in 
S.,  which  Agnes  de  A.  holds  for  her  life,  and  again  ought  the 
said  Elias  to  have  the  said  forty  shillings,  and  he  produces  a 
chirograph  which  testifies  this.  And  the  sheriff  testifies  by 
his  writ  that  the  forty  shillings'  rent  was  taken  into  the  hand 

'  Skarphedinn  was  a  son  of  Njal.  -  i  Rotuli,  90,  anno  119-1. 


282  HISTORY   OF   PROCEDURE. 

of  the  king  on  the  day  of  Venus  next  after  the  feast  of  St. 
Edmund  by  default  of  the  said  J.  against  the  said  Elias,  and 
J.  came  within  fifteen  days  and  sought  the  said  forty  shiUings' 
■rent  by  replevin.  It  was  considered  that  J.  have  by  replevin 
the  forty  shillings'  rent,  and  a  day  is  given  them  on  the  day 
of  St.  Hilary  in  fifteen  days,  and  in  the  meantime  they  have 
license  of  concord,  and  J.  puts  in  his  place  for  receiving  the 
chirograph  Hugh  de  B.  or  Ralph  le  F.,  and  Elias  puts  in  his 
own  place  in  respect  thereof  Geoffrey  de  H.  ^ 

Humfreyde  W.2  demanded  against  Roger  C.  five  shillings' 
rent  and  threepence  in  B.  as  his  right  and  inheritance,  which 
Warin,  his  father,  loaned  to  William  C,  father  of  the  said 
Roger,  in  the  time  of  king  Stephen,  for  a  term  which  is  passed 
as  he  says.  Roger  comes  and  defends  his  right  and  that 
loan,  and  says  that  he  holds  that  rent  as  his  inheritance  and 
his  own  frank  tenement,  and  offers  to  defend  by  Peter  de  W. 
as  the  court  considered  as  (of  a  matter)  "  de  longo  tempore." 

The  nuns  of  H.^  demand  against  Fulc,  son  of  T.,  two 
marks'  rent,  to  wit,  one  mark  in  E.  and  one  mark  in  S.,  which 
Eustace  de  B.  was  wont  to  pay,  which  (marks)  T.,  his  father, 
gave  them  in  frankalmoign  and  confirmed  by  his  charter, 
Avhich  they  produce.  And  Fulc  comes  and  says  that  his 
father  was  seised  thereof  on  the  day  upon  which  he  was  alive 
and  dead,  and  he  (Fulc)  never  liad^  seisin  thereof,  and  that 
his  father  gave  more  than  sixty  shillings,  the  last  third  of  all 
his  land  (to  the  plaintiffs),  and  he  demanded  judgment  of  the 
court  whether  he  ought  to  warrant  gifts  of  this  kind,  and 
besides  he  says  that  his  sister  was  "  familiaris  "  to  his  father, 
and  had  his  seal  at  her  pleasure,  that  she  was  a  nun  at  H., 
and  could  seal  what  she  Avould,  and  he  did  not  defend  (i.e. 
deny)  the  charter.     They  made  a  concord. 

'  It  will  be  observed  that,  so  far  as  the  record  goes,  the  procedure  is  the  same 
as  that  described  ante,  p.  221,  in  an  action  for  the  recovery  of  land. 
I  Rotuli,  410,  anno  1 199.  ^  lb.  427,  anno  1 199. 

4  There  seems  to  be  a  mistake  in  the  MS.  or  printed  text.     The  latter  reads 
"ille  ....   huunt." 


THE    ISSUE    TERM.  283 

In  the  following  case  it  will  not  be  difficult  to  find  a 
suggestion,  if  needed,  of  detinue,  though  the  meaning  of  the 
plea  is  not  clear  :  Richard  de  W. '  puts  all  his  land  and  what- 
ever he  has  in  pledge  to  convict  Henry  de  M.  that  his 
(Richard's)  brother  handed  over  to  him  a  war-horse  on  his 
march  to  Jerusalem,  which  he  thus  far  detains,  Henry- 
defends  and  says  that  he  gave  to  his  own  lord  a  palfrey  for 
his  march  and  his  lord  gave  to  him  a  trotting  pack-horse. 
Pledges  of  Henry  for  standing  to  right  (i.e.  proving  his  plea), 
Roger  E.  and  Albin.2 

Apart  from  the  medial  judgment,  it  often  happened  that 
judgment  was  rendered  at  the  issue  term.  Certain  criminal 
cases  in  which  the  accused  was  at  once  put  upon  trial  have 
already  been  mentioned.-^  There  were  three  other  classes  of 
cases  ;  first,  confession  of  judgment  by  either  party  ;  secondly, 
judgment  against  2.  plaintiff  iox  default  of  appearance  ;  thirdly, 
judgment  upon  issues  of  law  and  upon  such  issues  of  fact  as 
the  court  were  competent  to  decide,  when  the  court  were 
prepared  to  decide  them  at  once. 

No  reference  to  authority  is  needed  to  show  that  judgment 
might  be  confessed  at  the  first  term  ;  but  the  records  contain 
some  striking  examples,  two  or  three  of  which,  as  serving  to 
bring  the  procedure  into  clear  outline,  may  be  presented.  Of 
these  the  case  of  Abbot  Faritius  v.  William,  the  King's 
Chamberlain,^  of  the  time  of  Henry  the  First,  may  be 
mentioned. 

The  defendant  was  tenant  of  plaintiff  by  knight  service, 
and  having  failed  to  furnish  his  man  when  required,  the  abbot 
brings  suit  for  the  land  held  by  him.  To  this  end  he  brings 
forward  his  witnesses  in  the  usual  way,  at  the  issue  term  (at 
least  there  is  nothing  to  show  that  this  was  at  the  trial  term), 


'  I  Rotuli,  6,  anno  1 194;  Abbrev.  Plac.  5. 

-  If  Richard's  brother  was  Henry's  lord,  the  meanuig  of  the  plea  seems  to  be 
that  Henry  and  Richard's  brother  simply  exchanged  horses. 

3  Ante,  p.  229  ;  Laws  Hen.  I.  c.  47.  4  Placita  Ang.-Norm.  75. 


284  HISTORY   OF   PROCEDURE. 

to  show  that  the  land  had  furnished  a  knight  in  the  time  of 
the  Conqueror  ;  and  his  case  was  so  strong  that  the  defendant 
could  not  deny  the  allegation  ;  and  the  plaintiff  had  judgment 
at  once.i 

About  the  year  1158  abbot  Walkelin  sues  Turstin  Basset, 
alleging  that  the  latter  has  disseised  him  of  a  certain  tithe,  and 
summons  him  by  the  king's  writ.  Upon  the  reading  of  the 
writ,  the  plaintiff  brings  "the  testimony  of  the  whole  county," 
which  the  defendant  does  not  venture  to  deny,  and  judgment 
is  given  in  favour  of  the  plaintiff  without  further  delay.^ 

In  the  case  of  the  Abbot  of  St.  Augustine  v.  Men  of  Thanet,3 
anno  1176,  the  plaintiff  relies  upon  a  former  judgment  in  his 
favour  as  to  the  point  in  dispute ;  which  the  defendants  are 
compelled  to  admit,  and  the  plaintiff  has  judgment. 

Not  far  from  the  year  1154,  Robert  de  I.  sues  the  abbot  of 
Battel  for  trespassing  upon  land  alleged  to  belong  to  the 
plaintiff  and  carrying  off  hay  thence.  This  land  had  been 
laid  off  to  the  abbot  in  a  trial  that  had  just  occurred  with 
Gilbert  de  B.;  and  Robert  of  I.  claimed  that  the  boundaries 
had  been  improperly  set  and  that  part  of  his  land  had  been 
given  to  the  abbot.  The  abbot  denies  the  claim  and  assertion, 
bringing  to  court  with  him  the  men  who  had  laid  off  the 
boundaries,  "  iterato  sacramentum  prcxstare  parati,  se  non 
quidem  amplius,  quinimmo  ne  sacramenti  pra^stiti  viderentur 
transgressores,  minus  justo  suo  ambitu  conclusisse."  This  was, 
of  course,  sufficient  to  give  the  abbot  the  proof  at  the  trial 
term  ;  and  the  plaintiff  thereupon  secretly  leaves  the  court  and 
takes  to  flight,  being  adjudged  guilty  of  a  false  plea.4 

An  important  example  of  the  year  1 147  is  furnished  by 
the  case  of  Bishop  Ascelin  and  the  Monks  of  St.  Andrew  ;^  a 
case  showing  that  a  bad  plea  might  be  treated  as  confession 
of  judgment.     The  latter  asserted  that  certain  manors  had 

'  See  also  the  two  following  cases,  ib.  pp.  76,  77.         ^  lb.  197.         ^  lb.  224. 
^  Ib.  179.     The  plaintiff's  flight  is  stated  in  the  chronicle  of  Battel  Abbey. 
5  lb.  160. 


THE    ISSUE   TERM.  285 

been  granted  them  by  William  the  Conqueror,  and  by  arch- 
bishop Lanfranc  and  bishop  Gundulf;  and  they  produced 
their  charters  in  support  of  their  allegation.  Bishop  Ascelin 
being  unable  to  make  any  good  and  valid  answer  ("  nichil 
firmum,  nichil  validum  respondcret "),  judgment  is  at  once 
given  in  favour  of  the  monks. 

The  second  class  of  cases,  in  which  judgment  is  given  for 
the  defendant  for  default  of  appearance  of  the  plaintiff, 
deserves  some  comment.  The  judgment  \vas  that  the 
defendant  go  without  day,  and  that  the  plaintiff  and  his 
pledges  be  in  mercy  for  failure  to  prosecute.  As  a  conse- 
quence of  this  judgment  the  pledges  were  attached  to  show 
cause  at  a  day  stated  why  they  had  not  their  man  in  court 
at  the  appointed  time.  This  judgment  the  defendant  was 
entitled  to,  as  we  have  seen,  upon  the  fourth  day  after  the  day 
set  for  appearance.  A  single  example  will  serve  sufficiently 
to  enforce  the  right  of  the  defendant  and  the  consequences 
which  befell  the  defaulting  plaintiff  and  his  sureties.  Henry, 
son  of  W.,"  and  Hugh;  son  of  B.,  and  Ralph,  his  son,  offered 
themselves  on  the  fourth  day  against  William  de  C,  concern- 
ing a  plea  of  appeal  "  de  pace  domini  regis  infracta,"  of  which 
the  said  William  appealed  them,  and  he  (William)  came  not 
or  essoined  himself,  and  a  day  was  given  to  him  (to  answer  for 
the  default)  before  the  justiciars  at  Northampton.  Judgment 
that  Henry,  Hugh,  and  Ralph  go  quit,  and  that  William  be  in 
mercy,  and  also  his  pledges,  to  wit,  Godfrey  de  B.  and  Satedin 
de  H. 

The  judgment,  however,  did  not  touch  the  merits  of  the 
demand,  and  the  plaintiff,  upon  excusing  or  purging  himself 
of  his  default,  was  permitted  to  renew  his  suit.  This  appears 
from  the  many  entries  in  the  Rotuli,  some  of  which  have 
already  been  quoted,  in  which  the  judgment  declares  that  the 
defendant  shall  go  without  day,  and  the  plaintiff  shall  have 
such  recovery  as  he  ought  to  have.  A  single  example  may  be 
'  I  Rotuli,  29,  anno  1194. 


285  HISTORY   OF   PROCEDURE. 

here  added.  Dayi  was  given  to  Alexander  A.  (plaintiff)  and 
to  William  de  C.  (defendant)  concerning  a  pica  of  the  Grand 
Assise  of  a  knight's  fee  in  G.  at  the  feast  of  St.  Michael  in 
fifteen  days,  and  it  was  ordered  that  the  assise  come  then,  and 
at  that  day  came  William,  and  he  waited  until  the  morrow  of 
the  feast  of  (All)  Souls,  and  Alexander  came  not  nor  essoined 
himself,  and  thereupon  it  was  considered  that  William  go 
without  day,  and  that  Alexander,  who  is  plaintiff,  have  such 
recovery  as  he  ought  to  have. 

In  the  third  class  of  cases  a  decision  is  reached  at  the  issue 
term  by  reason  of  the  pleadings  raising  a  question  of  law  or 
some  question  of  fact  which  properly  belonged  to  the  court  to 
decide.  The  case  of  Archbishop  of  Canterbury  v.  Abbot  of 
Battel  Abbey,2  temp,  king  Stephen,  turned  upon  a  question  of 
law,  and  was  decided  (without  appointment  of  a  trial  term) 
just  as  a  modern  case  of  the  kind  would  be  decided,  by  a  sub- 
mission of  the  point  of  law  in  the  question  to  the  determination 
of  the  court,  and  not  to  some  test  imposed  upon  the  parties. 
The  defendant  had  seized  upon  wreck,  in  accordance  with 
the  ancient  law  of  wreck  as  it  had  prevailed  before  the  modi- 
fication made  by  Henry  the  First.  If  the  modified  law  still 
prevailed,  the  defendant  was  liable  ;  if  the  old  law,  he  was  not. 
The  defendant  contended  that  with  the  death  of  Henry,  Henry's 
law  failed,  and  the  ancient  common  law  prevailed ;  and  the 
court  ruled  that  way.3 

At  the  beginning  of  the  reign  of  Henry  the  Second  the 
abbot  of  Battel  brought  an  action  against  Gilbert  de  Baillol  for 
the  recovery  of  certain  lands,  of  which  he  alleged  that  the 
defendant  had  unlawfully  disseised  him.  The  plaintiff  sets  up 
title  under  charters  ;  whereupon  the  defendant,  observing  that 
some  of  them  are  without  seals,  raises  an  objection,  which 

'  I  Rotuli,  24,  anno  1194.  ~  lb.  143. 

3  There  was  indeed  a  second  term  in  this  case,  but  that  was  caused  by  a 
judgment  by  default  at  the  first  term,  which  default  was  now  set  aside.  The  term 
was  not  a  trial  term.  For  another  case  turning  upon  a  point  of  law  decided  by 
the  court,  see  Abbot  of  Abingdon  v.  Anskill,  Placita  Ang.  -Norm.  62. 


THE    ISSUE   TERM.  287 

is  overruled.      No   other  defence  being  made,  the   plaintiff 
recovers  judgment  at  the  same  sitting.^ 

Afterwards  in  Abbot  of  Battel  v.  Alan  de  B.2  already- 
referred  to,  the  plaintiff  claims  the  right  of  presentation  to  a 
certain  church.  The  defendant  sets  up  title  under  a  charter 
purporting  to  have  been  executed  by  a  predecessor  of  the 
plaintiff.  The  plaintiff  questions  the  genuineness  of  the  charter, 
and  the  whole  court  advise  a  compromise  ;  which  is  agreed  to, 
and  compromise  is  drawn  up  at  once.^ 

'  Placita  Aug. -Norm.  175.  -  lb.  245. 

■'  Comp.  also  the  result  of  the  plea  of  Ganelon,  who  is  represented  in  the 
Chanson  de  Roland  (latter  part  of  the  twelfth  century)  as  appealed  of  treason  by- 
Charlemagne  for  the  death  of  Roland.  His  answer  is  that  Roland  had  done  him 
wrong,  whereupon  he  had  renounced  his  fealty  to  him  and  given  him  the  dijjidalio 
(defiance),  and  hence,  as  he  alleged,  his  offence  could  not  be  treason.  "  We  shall 
take  counsel  of  the  matter,"  said  the  judges. — Chanson  de  Roland,  348  (Gautier). 
The  judges  were  about  to  accept  the  plea,  but  the  emperor  virtually  required  them 
to  overrule  it. — lb.  350. 


CHAPTER   VIII. 

THE  MEDIAL  JUDGMENT. 

The  parties  having  joined  issue,  the  next  step  in  the  pro- 
ceedings was  what  may  be  called  the  medial  or  proof  judg- 
ment ;i  a  step  known  in  survival  to  living  memory.  Compur- 
gation was  abolished  by  act  of  Parliament  in  the  year  1836; 
and  the  ancient  right  of  trial  by  battle,  after  having  long 
been  forgotten,  was  successfully  invoked  in  the  year  1819,2 
and  abolished  in  the  following  year. 

This  medial  judgment  was  pronounced  at  the  issue  term, 
and  is  to  be  sharply  distinguished  from  the  final  judgment 
pronounced  at  the  trial  term  after  the  question  at  issue  had 
been  decided.  The  medial  judgment  merely  determined 
what  should  be  done  upon  the  issue  joined,  when  it  should  be 
done,  and  by  whom  it  .should  be  done.  If,  for  example,  the 
plaintiff  had,  in  conformity  with  the  law  applicable  to  the  par- 
ticular case  and  to  the  parties,  offered  to  prove  by  his  witness 
and  champion  the  claim  set  out  by  him  and  traversed  by  the 
defendant,  the  court,  through  the  presiding  judge,  directed 
that  security  should  be  given  and  the  duel  waged  at  a  subse- 
quent day  named  (the  trial  term),  between  the  plaintiff's 
champion  and  the  defendant.    If  the  ordeal  were  tendered,  and 

'  The  "  Beweisurthcil "  of  the  German  writers. 
'  Ashford  v.  Thornton,  i  Barn,  and  Aid.  405. 


THE    MEDIAL   JUDGMENT.  289 

the  case  were  proper  for  that  mode  of  trial,  the  judge  set  a  day 
for  the  test  and  directed  the  party  to  give  security  to  undergo 
the  same.  If  the  plaintiff  or  the  defendant,  upon  a  valid  plea, 
had  offered  to  prove  his  allegation  by  charters,  the  court 
required  the  giving  of  security  for  the  production  of  the  charters 
upon  a  day  named  ;  the  judgment  often  providing  for  the  pro- 
duction of  charters  by  both  parties.  In  case  proof  was  offered 
properly,  either  by  compurgators  or  by  witnesses,  the  precise 
question  in  issue  was  set  out  by  the  court,  and  the  person  who 
was  to  sustain  the  burden  of  proof  (the  one  who  had  made  the 
last  good  allegation)  was  required,  upon  giving  security,  to 
appear  upon  a  certain  day  with  his  compurgators  or  with  his 
witnesses,  and  sustain  the  allegation  in  question.  If  the  king 
or  his  justiciar  had  ordered  a  recognition,  the  writ  stated  the 
question  to  be  answered,  and,  after  security  giveUj  required 
the  recognitors  to  be  summoned  to  testify  of  the  matter  upon 
a  day  named. 

Frequent  examples  of  this  step  in  the  procedure  occur  in 
the  records  of  the  eleventh  and  twelfth  centuries.  In  a  case 
already  referred  to.  Bishop  Wulfstan  v.  Abbot  Walter,'  the 
record  states  that  at  a  great  assembly  in  Worcester,  convened 
for  the  trial  of  this  case,  claim  was  made  by  the  plaintiff  to 
certain  services,  and  witnesses  offered  who  in  the  time  of 
Edward  the  Confessor  had  seen  and  undertaken  the  said 
services  on  behalf  of  the  bishop.  This  was  denied  by  the 
defendant ;  and  thereupon  by  order  of  the  king's  justiciar' 
and  the  decision  of  the  barons,  the  case  went  to  judgment, 
i.e.  to  the  medial  judgment.  "And  because  the  abbot  said 
that  he  had  no  witnesses  against  the  bishop,  it  was  adjudged 
by  the  wise  men  that  the  bishop  should  name  his  witnesses 
and  produce  them  upon  a  day  appointed,  and  by  oath 
prove  his  words  ; "  the  abbot  to  bring  such  relics  (for  the 
bishop's  witnesses  to  swear  upon)  as  he  could.  Here  will  be 
distinctly  seen  the  burden  of  proof,  the  theme  of  proof,  and 

.   '  PlacUa  Ang. -Norm.  16. 

U 


290  HISTORY   OF   PROCEDURE. 

the  time  for  making  the  proof.  Wiiether  security  was  required 
does  not  appear.  The  position  of  the  plaintiff  may  have 
exempted  him  from  giving  it. 

In  the  case  of  Modbert  v.  Prior  and  Monks  of  Bath'  the 
plaintiff  laid  claim  to  certain  land  at  Bath,  to  which  the 
defendants  claimed  title,  deraigning  the  same  and  offering 
witnesses  present  in  court.  This  was  sufficient  to  entitle  the 
defendants  to  go  to  the  proof;  but  their  claim  was  violently 
opposed  in  the  court,  and  an  uproar  followed.  Besides,  the 
plaintiff  had  come  into  court  with  a  writ  of  seisin  from  the 
king's  son,  which,  however,  the  presiding  judge  interpreted  as 
merely  intended  as  an  alternative  mandate,  authorising,  in 
case  of  refusal,  a  trial  of  the  claim.  The  plaintiff  insisted  upon 
his  claim  ;  and  the  result  at  last  was  that,  at  the  suggestion  of 
the  presiding  judge,  certain  impartial  senior  men  of  the  court 
w^ent  apart  to  consider  of  the  matter.  Upon  their  return  it 
was  announced  that  the  plaintiff  must,  in  support  of  his  claim, 
name  at  least  two  free  and  legal  witnesses  from  the  defendant'' s 
convent,  or  a  charter  truly  executed,  and  produce  the  same 
upon  the  eighth  day  thereafter  ;  a  judgment  which  the  plaintiff 
could  not  perform. 

The  medial  judgment  is  suggested  by  a  single  expression 
in  the  Case  of  Henry  of  Essex,^  appealed  anno  1 163  of  treason. 
The  record  states  that  the  defendant,  having  denied  the  charge, 
"  a  short  space  of  time  afterwards  "  went  to  the  duel.  So  in 
the  Case  of  Ailward,^  the  defendant  having  been  cast  into 
prison  on  a  charge  of  theft,  is  finally  adjudged  to  undergo  the 
ordeal.  In  the  Case  of  Girard  of  CamvilH  the  defendant  is 
accused  of  various  crimes,  and,  having  made  answer,  gives 
pledges  for  defending  himself  by  one  of  his  men.  These 
examples  might  be  indefinitely  multiplied  from  the  Rotuli 
Curite  Regis  and  the  Abbreviatio  Placitorum.  Indeed,  every 
record  or  statement  of  the  trial  (in  a  literal  sense)  of  an  issue 
implies  the  medial  judgment. 

'  riacita  An|;. -Norm.  114.  -  lb.  2IO.  ^  lb.  260.  ■♦  lb.  2S3. 


THE   MEDIAL  JUDGMENT.  291 

We  have  already  observed,  on  more  than  one  occasion,  that 
the  question  of  the  burden  of  proof  was  determined  by  the 
state  of  the  pleadings.  The  proof  was  to  be  furnished  by  the 
party  who  had  made  the  last  sufficient  allegation,'  provided 
he  oiTercd,  with  his  pleading,  proof  sufficient  for  the  par- 
ticular case.  The  result  was  often  very  different  from  what 
would  occur  at  the  present  time. 

A  traverse  (i.e.  a  general  or  specific  denial)  by  the  defendant 
in  modern  English  pleading  does  not  withdraw  the  burden  of 
proof  from  the  plaintiff;  he  must  still  prove  his  case.  Under 
the  ancient  system,  however,  the  burden  followed  the  suffi- 
cient pleading  ;  and  the  defendant  who  had  traversed  (i)  an 
appeal,  or  (2)  a  presentment  on  behalf  of  the  public,  in  the 
one  case  must  make  his  proof  (by  the  duel),  and  in  the 
other  was  bound  to  exculpate  himself,  according  to  the  terms 
of  his  defence.  In  other  cases,  however,  a  denial  was  often 
made  when  the  defendant  had  no  proof,  for  the  purpose  of 
preventing  the  implication  of  a  confession  of  judgment  or 
a  fine  for  disobeying  summons.  The  result  was  that  the 
plaintiff  was  put  to  the  proof  of  his  case. 

In  the  case  of  what  would  be  termed  a  plea  of  confession 
and  avoidance  (the  "exception  "  of  the  Roman  procedure  and 
its  modern  successors),  there  was  no  substantial  difference 
between  the  ancient  English  and  the  modern  English  pro. 
cedure  ;  but  the  ground  upon  which  the  burden  of  proof  has 
proceeded  in  the  two  cases  is  different.  In  the  modern 
practice  the  burden  of  proof  in  such  a  case  rests  upon  the 
defendant  because  he  has  "confessed"  the  plaintift's  declara- 
tion, but  has  "  avoided  "  it  by  setting  up  some  new  affirmative 
matter,  such  as  accord  and  satisfaction,  v/hich  (if  true)  shows 
that  the  plaintiff's  claim  ought  not  to  be  enforced.  In  the 
ancient  practice  the  burden  of  proof  in  such  a  case  rested  upon 

'  The  same  was  true  of  the  Continental  procedure,  the  inaccurate  conceptions 
of  the  earher  (jerman  writers  having  in  recent  years  been  fully  demonstrated  by 
Dr.  Laband  in  his  learned  work  Die  vermiigensrechllichen  Klagen,  pp.  166  e/  seq. 

U    2 


292  HISTORY   OF   PROCEDURE, 

the  defendant  on  the  same  ground  that  it  did  in  the  case  of  a 
traverse,  to  wit,  that  the  last  pleading  was  a  good  answer  to 
what  had  preceded. 

In  case  of  the  non-appearance  of  the  defendant,  after  the 
required  summonses  and  permitted  essoins,  the  court  directed 
the  plaintiff,  except  in  cases  of  high  crimes,  to  appear  at 
another  term  and  furnish  his  proof,  unless  he  was  then  ready 
with  it.  I  His  count  or  appeal  being  the  only  allegation  before 
the  court,  that  allegation,  in  accordance  with  the  general  rule, 
must  be  established.  If,  however,  the  defendant  appeared,  he 
was  bound  to  answer  and  make  a  sufficient  defence,  otherwise 
he  was  deemed  to  have  confessed  judgment ;  thus  exempting 
the  plaintiff  from  the  burden  of  proving  his  allegation  as  he 
would  have  been  compelled  to  do  had  the  defendant  stayed 
away  from  court.  2 

If  the  proceeding  was  a  criminal  one,  and  the  defendant 
was  prosecuted  by  presentment  on  behalf  of  the  public,  that 
is,  of  the  king,  the  burden  of  proof  again  rested  upon  the 
defendant.  The  presentment,  if  properly  made,  raised  a  pre- 
sumption of  the  guilt  of  the  accused  ;  and  this  presumption 
must  be  repelled  to  save  him  from  conviction.  And  the  same 
was  true  in  the  case  of  appeals,  when  the  defendant  was  taken 
in  possession  of  stolen  goods,  or  of  the  bloody  instrument  with 
which  a  homicide  had  been  committed.  Such  facts  made  a 
presumption  of  guilt ;  and  the  court  declared  that  the  defendant 
must  exculpate  himself  as  best  he  could.  This  practice  was 
in  perfect  keeping  with  the  general  principle  above  stated  :  the 
defendant  denies  the  accusation^  and  this  requires  him  to  go 
to  the  proof  and  establish  his  innocence  if  he  can.  Escape  of 
those  against  whom  there  was  the  positive  evidence  of  being 
taken  in  crime  (of  high  degree),  through  this  rule  of  the  burden 
of  proof,  was  prevented  by  the  permission  which  the  law  gave 
to  execute  justice  upon  the  criminal  on  the  spot.     But  this 

•  See  riacita  Ang.-Norm.  151-153,  anno  1145  ;  1S2,  anno  I156. 

^  Laws  Ilcn.  I.  c.  49,  §  3  ;  c.  52,  g  i  ;  and  see  examples  given  infra. 


THE    MEDIAL  JUDGMENT.  293 

was  not  permitted  in  cases  of  mere  delects  unless  the  wrong- 
doer resisted  arrest.' 

The  interest  attaching  to  questions  of  proof  will  justify  an 
examination  of  the  materials  upon  which  the  general  rule 
above  stated  is  based.  The  practice  in  criminal  cases,  how- 
ever, is  so  clear  and  well  ascertained  that  it  will  not  be  necessary 
to  examine  the  cases  :  it  will  suffice  to  make  general  reference 
to  the  Assises  of  Clarendon  and  Northampton,  which,  so  far 
as  the  point  under  consideration  is  concerned,  represent  the 
state  of  the  law  throughout  the  eleventh  and  twelfth  centuries. 
The  closing  sentence  of  the  case  of  Gundulf  v.  Pichot,^  in  the 
time  of  the  Conqueror ;  the  Case  of  the  Fifty  Men,^  in  the 
time  of  Rufus  ;  and  the  Case  of  Ailward,4  in  the  time  of  Henry 
the  Second,  sufficiently  show  this. 

Domesday  Book  contains  a  mass  of  materials  bearing  upon 
the  production  of  proof  in  civil  cases.  William  de  C,  for 
example,  claims  that  certain  land  belonged  to  the  manor  of  C, 
and  brings  witnesses  of  the  best  senior  men  of  the  county  and 
hundred.  Picot,  the  defendant,  denies  the  claim  and  offisrs 
villeins,  common  people,  and  bailiffs  who  were  ready  to  defend 
his  denial  by  oath  or  by  ordeal.  This  would  have  given  the 
proof  to  Picot;  but  the  plaintiff's  witnesses  objected  to  being 
opposed  by  the  class  of  persons  offered  by  Picot,  unless 
required  by  the  king.  And  the  case  stands  over  for  his 
decision.5 

The  hundred  of  G.  witness  that  two  men  belong  to  William 
of  W. ;  but  a  man  of  the  king  offers  the  ordeal  that  they  per- 
tained to  another  manor  in  the  time  of  king  Edward.  The 
record  adds  that  the  king  takes  the  men  into  his  hand  ;  the 
meaning  of  which  is,  that  the  case  is  to  be  in  abeyance  until 
the  ordeal  is  undergone  by  the  party  proposing  it.^ 

Besides  cases  like  the  foregoing,  the  import  of  which  is 
clear,  there  are  many  others  in  Domesday  which  close  with 

'  Aihvard's  Case,  Placita  Ang.-Norm.  260.  *  lb.  36.  '^  lb.  72, 

"  lb.  260.  5  lb.  38.  6  lb.  42. 


294  HISTORY   OF   PROCEDURE. 

a  mere  offer  of  proof;  the  inference  being  that  the  offer  is 
good. 

To  turn  to  later  cases,  one  WilHam  lays  claim  to  the 
manor  of  C.  against  the  abbot  and  monks  of  Gloucester.  The 
latter  contest  the  claim,  whereupon  a  term  is  set  in  the  King's 
Court,  and  the  defendants  there  prove  their  title  by  an  eye 
and  ear  witness ;  ^  a  perfect  illustration  of  the  rule  under 
consideration. 

The  abbot  of  Battel  lays  claim  against  Alan  de  B.  to  the 
right  of  presentation  to  the  church  at  M.  Alan  contests 
the  claim  under  a  charter  by  which,  as  he  alleges,  a  prior 
abbot  of  Battel  had  conveyed  the  church  to  him.  A  term 
is  accordingly  set,  and,  the  plea  being  good,  Alan  furnishes 
the  proof — the  charter  referred  to — and  a  compromise 
follows.2 

In  one  or  two  cases  the  sufficient  pleading  did  not,  for 
special  reasons,  carry  the  right  to  furnish  the  proof  The  offer 
of  a  charter  by  the  plaintiff,  the  genuineness  of  which  was  not 
denied  by  the  defendant,^  is  one  case.  It  could  not  be  dis- 
puted, except  indeed  by  another  charter.  The  record  of  the 
King's  Court  and  of  the  Exchequer,  as  we  shall  see  hereafter, 
was  also  unimpeachable.  And  if  one  of  the  parties  to  a  cause 
should  invoke  such  record  to  prove  a  thing  said  or  done,  the 
other  did  not,  by  denying  the  allegation,  acquire  the  right  to 
disprove  it.  Upon  a  simple  traverse  of  the  act  or  words,  the 
affirming  party  was  still  entitled  to  call  for  the  record  of  the 
court  ;  the  testimony  of  those  present  who  were  entitled  to 
speak  to  the  question.  However,  it  seems  that  the  opposite 
party  could  offer  objection  to  the  bringing  of  the  record,  such 
perhaps  as  illegality  of  the  proceedings  for  want  of  summons  ; 
and   upon  such  an  objection,  the  party  offering  it  would  be 

'  Placita  Aug. -Norm.  135.  '  II1.  245. 

3  The  genuineness  of  the  seal  might  be  disputed,  and  a  successful  impeachment 
in  this  direction  destroyed  the  efficacy  of  the  charter  as  evidence.  But  if  the  seal 
was  genuine,  there  could  be  no  impeachment  of  the  document  except  by  another 
charter. 


THE    MEDIAL  JUDG^IENT.  295 

allowed  to  establish  it  if  he  could.  As  to  the  record  of  most 
of  the  inferior  courts  (excepting  certain  proceedings  in  the 
County  Court,  of  which  hereafter),  this  was  not  conclusive,  and 
a  traverse  carried  the  right  to  bring  the  proof.  It  is  probable 
again  that  no  one  would  be  permitted,  by  a  traverse,  to  deny 
the  offered  testimony  of  the  whole  community  as  to  the  holding 
of  a  court  at  a  certain  term.  Another  class  of  cases  has  been 
heretofore  mentioned  in  which,  against  the  offer  of  witnesses 
of  rank,  for  example,  a  bishop,  the  party's  traverse  did  not 
avail  him  to  such  an  extent  as  would  have  been  the  case  had 
common  men  been  offered.  He  was  not,  however,  cut  off 
from  the  privilege  attached  to  his  pleading :  he  was  only 
required  to  bring  proof  of  great  weight  ;  a  very  large  number 
of  witnesses  or  possibly  compurgators.  If  the  party  were  a 
stranger  in  the  district,  it  is  probable  that  he  was  still  entitled 
to  wage  the  duel  or  go  to  the  ordeal,  according  to  the  nature 
of  the  case,  notwithstanding  the  rank  of  the  witnesses  offered 
against  him.  It  is  apprehended  that  in  all  cases  in  which  the 
allegation  in  question  was  impeachable,  a  traverse  carried  the 
right  of  proof. 

The  party  who  had  made  the  last  good  pleading  was 
entitled  to  ask  the  court  for  a  judgment  according  to  law  as 
to  the  mode  of  trial  to  be  had.  It  was  not  within  the 
arbitrary  will  or  generally  even  in  the  discretion  of  the  judges 
to  order  such  a  trial  as  they  thought  fit.  In  issues  of  right, 
the  court  was  bound  in  ordinary  cases  to  order  the  duel, 
unless  the  defendant  had  put  himself  upon  the  Grand  Assise  ; 
when  the  court  was  bound  to  allow  that  mode  of  trial.  The 
duel,  it  should  be  remarked,  was  required  upon  the  tender  of 
the  plaintiff,  when  the  defendant  did  not  require  a  recognition 
by  the  Magna  Assisa.  This,  however,  was  not  because  the 
proof  belonged  to  the  plaintiff,  but  because  that  was  the  con- 
stitutional mode  of  trial.  That  the  proof  belonged  to  the 
party  who  had  last  pleaded  well,  even  in  pleas  of  right,  is 
shown  by  two   circumstances  ;    first,  in  that  the   court  was 


296  HISTORY   OF   PROCEDURE. 

bound  to  award  the  Grand  Assise  upon  the  demand  of  the 
tenant  and  could  not  be  required  in  the  count  of  the  de- 
mandant to  do  so  (the  demandant  could  require  it  by  an 
appropriate  replication  to  the  defendant's  plea,  which  fact 
itself  illustrates  the  rule  as  to  the  proofs)  ;  and  secondly,  in 
that  when  the  parties  came  on  prepared  for  the  wager  of 
battle,  the  tenant  was  always  sworn  first,  as  will  be  seen  in 
the  following  chapter.  The  duel  might  also  be  demanded, 
sometimes,  in  cases  of  theft, i  in  appeals  of  outlawry,^  and, 
at  least  in  the  eleventh  century,  in  trials  of  disseisin,^  and,  in 
the  time  of  Glanvill,  by  pledges  of  debt.'^ 

Indeed,  as  a  rule,  in  all  cases  of  appeals  the  court  was 
bound,  if  asked,  to  award  the  duel  ;  though  it  should  be 
observed  that  trial  by  battle  was  an  innovation  in  England, 
and  not  a  few  towns  had  obtained  exemption  from  it.  This 
was  true  of  London.^  Winchester,^  Lincoln,^  St.  Edmunds- 
bury,8  and  perhaps  of  Oxford,  which  possessed  the  same 
privileges  in  general  as  London. 9  An  interesting  example  of 
such  exemption  has  been  preserved  by  Jocelyn  de  Brakelond. 
About  the  year  1198  a  free  tenant  of  the  cellarer  of  the 
monastery  of  St.  Edmund,  named  Ketel,  who  lived  without  the 
gates  of  the  town  (St.  Edmundsbury),  having  been  accused 
of  larceny,  was  overcome  in  the  duel  and  hung.  But  the 
burghers,  says  Jocelyn,  taunted  the  men  of  the  convent, 
saying  that  if  Ketel  had  resided  within  the  burgh,  he  would 
not  have  been  required  to  wage  the  duel,  but  might  have 
acquitted  himself  by  the  oaths  of  his  neighbours  (i.e.  by 
compurgation),  "sicut  libertas  est  eorum  qui  manent  infra 
burgum."io     And  this  appears  to  have  been  the  general  law 


'  Laws  Wm.  I.  ii.  c.  I  5  iii.  c.  12 ;  case  of  Ketel,  infra> 
-  Wm.  I.  ii.  c.  3.        .  =1  Anlc^  p.  177,  n.  i. 

"f  Glanvill,  lib.  10,  c,  5,  §  7.     See  infra  as  to  compurgation  in  such  Cases, 
s  Stubl«,  Sel.  Ch.  108  (2d  ed.),  charter  of  lien.  I. 
^  lb.  266,  charter  of  Rich.  I.  7  lb.  267,  lb. 

^  Jocelyn  de  Erakel.  74  (Camden  Soc.). 
5  Stubbs,  Sel.  Ch.  167,  charter  of  Hen.  II. 
'°  Jocelyn  de  Brakel.  ut  supj-a. 


THE    MEDIAL  JUDGMENT.  297 

as  to  the  lesser  ciimcs  in  the  time  of  the  Conqueror,  if  not 
considerably  later.' 

If  in  any  of  the  foregoing  cases  the  party  who  was  to 
furnish  the  proof  was  a  woman, 2  a  maimed  man,  or  a  man 
above  sixty  years  of  age,  the  duel  was  not  required.  In  the 
case  of  one  who  had  suffered  mayhem  (by  which  was  then 
meant  the  breaking  of  any  bone  or  an  injury  to  the  head 
either  by  wounding  or  abrasion 3)  the  party,  in  criminal  cases 
at  all  events,  w^as  entitled  to  judgment  of  the  ordeal  ;  of  hot 
iron  if  he  were  a  freeman,  of  water  if  he  were  a  rustic.^  The 
same  was  probably  true  of  men  over  sixty  years  of  age,  and 
of  women.  A  man  accused  by  a  woman  of  the  death  of  her 
husband  could  also  exculpate  himself  by  the  ordeal. ^ 

One  who  was  accused  of  crime  within  the  terms  of  the 
Assise  of  Clarendon  or  of  Northampton  was  entitled  to 
undergo  the  ordeal,  when  not  caught  in  the  act.  This  was 
also  true  of  accusations  of  lese-majesty  by  the  public  voice,  as 
we  have  scen,^  and  was  probably  true  also  of  similar  prosecu- 
tions of  inferior  crimes  ;  though  by  the  ancient  procedure, 
still  preserved  in  some  of  the  towns,  compurgation  was 
allowed  in  most  cases  of  crime.7 

Compurgation  was  allowed  also  in  delicts,  in  questions  of 
warranty,8  in  denials  of  summons,9  in  exculpation  of  bail 
(pledges)  or  failing  to  produce  their  principal  in  court  in 
criminal  if  not  in  civil  cases,io  to  lords  upon  the  escape  of 
their  servants  charged  with  the  commission  of  crime,"  and 
perhaps  (for  the  law  was  doubtful  in  the  time  of  Glanvill)  in 
cases  of  debt  for  money  loaned,'^  but  not,  it  seems,  in  debt  for 

'  Laws  \Vm.  L  i.  c  51,  ^  Comp.  Laws  Edw.  Conf.  c.  19. 

3  Glanvill,  lib.  I4,  c.  i,  §  8.  ■*  Ibid.  5  Glanvill,  lib.  14,  c.  3. 

^  A  life,  pp.  277,  278. 

7  Laws  Wm.  I.  i,  c.  14  ;  Hon.  I.  c.  66,  §  9,  compurgation  in  appeals  of  theft, 
robbery;  and  burning;  Wm.  I.  i.  c.  15,  violation  of  churches  "  aut  alicujus 
cameram." — lb,  c.  51.  "  lb.  cc.  21,  45. 

5  I  Rotuli,  200.  '°  Post,  pp.  306,  307.  "  Laws  Wm.  I.  i.  c.  52. 

'-  Glanvill,  lib.  10,  c.  5,  §  7.  The  practice  was  evidently  in  a  state  of  transition 
at  this  time  between  compurgation  and  the  duel ;  the  former  prevailing  in  the  next 
century. 


298  HISTORY   OF   PROCEDURE. 

rent  and  customs  due  by  tenure,  between  lord  and  man.i 
But  compurgation  was  in  transition  throughout  the  twelfth 
centur}-. 

Parties  always  had  the  right  to  require  a  trial  by  charters. 
Strangers  and  others  who  could  produce  neither  charters, 
compurgators,  nor  witnesses  could  demand  the  judgment  of 
God,  but  whether  they  could  elect  between  the  ordeal  and  the 
duel  does  not  appear.^  In  the  eleventh  century  it  is  probable 
that  an  Englishman  could  elect  the  ordeal  and  a  Frenchman 
(Norman)  the  duel.  That  was  the  case  certainly  in  appeals 
between  persons  of  the  two  races.^  The  practice  of  invoking 
judgment  of  trial  by  witnesses  was  apparently  growing  infre- 
quent by  the  middle  of  the  twelfth  century.  It  is  probable 
that  it  could  still  be  demanded  as  formerly  in  any  case  in 
which  the  evidence  of  the  community  could  establish  a  fact, 
such,  for  instance,  as  in  a  case  of  sale  or  rearing,^  or  in  a 
question  of  freedom,  or  in  public  transactions  generally  ;  but 
compurgation  and  recognitions  were  coming  to  be  preferred. 
Trial  by  recognition  was  usually  settled  by  the  king's  writ; 
though  it  might  also  be  demanded  upon  the  pleadings  of  a 
cause  in  which  an  issue  appropriate  for  it  was  joined. 

In  case  of  a  division  of  the  court  as  to  the  judgment  to  be 
pronounced,  the  majority  governed. ^  But  a  denial  of  the 
right  of  a  party  to  the  particular  mode  of  trial  to  which  he 
became  clearly  entitled  upon  the  pleadings,  and  the  adjudica- 
tion of  some  other  mode,  was  a  case  of  false  judgment ;  a 
wrong  of  which  the  ancient  records  contain  not  unfrequent 
mention.  This  was  the  "  false  judgment  "  of  which  the  injured 
party  (who  might  be  the  party  who  was  to  furnish  the  proof, 
or  the  opposite  party)  had  the  right  in  the  time  of  Glanvill  to 

'  When  the  relation  of  the  parties  was  not  tliat  of  lord  and  man,  with  fealty 
and  homage,  compurgation  was  probably  allowed.  The  duel,  or  the  Grand 
Assise,  as  we  have  seen,  was  the  mode  of  trial  between  lord  and  man  in  cases  of 
rent  and  services. 

*  See  Wm.  I.  i.  c.  15.  ^  Laws  Wm.  I.  ii.  cc.  1-3. 

*  Laws  Wm.  I.  i.  cc.  21,  45.  5  Laws  Hen.  I.  c.  5,  §  6. 


THE    MEDIAL  JUDGMENT.  299 

appeal  the  court  to  wac^cr  of  battle.  "  Though  a  court,"  says 
Glanvill,  "  is  not  obliged  to  defend  its  record  by  the  duel,  it  is 
bound  to  defend  its  judgment  by  the  duel.''^  In  the  eleventh 
century  the  judge  was  to  be  in  the  king's  mercy  in  sixty  shil- 
lings, and  to  lose  his  liberty,  unless  he  could  purge  himself  by 
sho^ving  that  he  had  acted  ignorantly.^  By  the  laws  of  Henry 
the  First  the  judge,  was  to  pay  one  hundred  and  twenty- 
shillings,  and  lose  his  thegnship  and  all  judicial  dignity,  unless 
he  could  obtain  a  discharge  from  liability  from  the  king,  or 
prove  that  he  had  acted  in  ignorance.  ^  Between  compurga- 
tion, the  duel,  and  the  ordeal,  difficult  questions  must  some- 
times have  arisen,  and  mistakes  by  unskilled  judges  not 
unfrequently  made. 

The  law  and  procedure  in  respect  of  a  complaint  of  false 
judgment  in  the  time  of  Glanvill  are  thus  laid  down  :  If 
anyone  should  declare  against  the  court  for  pronouncing  a 
false  judgment,  alleging  that  it  was  false  for  this  reason,  that 
when  one  party  had  said  thus,  and  the  other  answered  thus, 
the  court  had  adjudged  falsely  of  their  allegations  by  deciding 
in  such  words  (the  formula  of  the  medial  judgment),  and  that 
the  court  had  given  such  false  judgment  by  the  mouth  of  N. ; 
and  if  he  were  disposed  to  deny  the  charge,  the  other  was 
prepared  to  prove  it  against  him,  especially  by  such  a  com- 
petent witness,  who  is  prepared  to  prove  it  ;  thus  the  matter 
went  to  the  decision  of  the  duel. 4 

Glanvill  raises  a  question  whether  the  court  was  required 
to  defend  itself  by  one  of  its  own  members,  or  might  do  so  by 
a  stranger.  The  answer  given  by  him  was  that  the  court 
should  defend  itself  "  maximc  "  by  the  person  who  had  ren- 


'  Glanvill,  lib.  8,  c.  9,  §  5.  By  the  court's  record  Avas  meant  the  proof  of 
anything  that  had  transpired  at  a  previous  session.  It  did  not  refer  to  any 
written  memorial  of  the  proceedings.  The  record  (in  this  sense)  of  the  King's 
Courts  was  alone  indisputable,  with  some  few  exceptions. — Glanvill,  lib.  8,  c.  8  ; 
Laws  Hen.  I.  c.  31,  §  4 ;  c.  49,  §  4. 

.  "^  Wm.  I.  i.  c.  39.     See  also  c.  42.  3  Hen.  I.  c.  34,  §  I. 

'■  Glanvill,  lib.  8,  c.  9,  §  5. 


300  HISTORY   OF   PROCEDURE. 

dcrccl  the  judgment,  that  is,  commonly  by  the  presiding  judge. 
If  the  court  were  convicted,  the  lord  thereof  ("  dominus 
curiae")  should  be  amerced  to  the  king  and  should  for  ever 
lose  his  court ;  a  statement  referring  of  course  to  an  appeal 
of  a  Manorial  Court.  Indeed,  the  whole  court  were  to  be 
amerced.  On  the  other  hand,  if  the  appellor  failed,  he  was 
in  consequence  to  lose  his  principal  suit.' 

'  Glanvill,  lib.  S,  c.  9,  §  6. 


CHAPTER   IX. 

THE  TRIAL  TERM. 

The  next  step  in  the  procedure  was  the  appearance  of  the 
parties  before  the  judges  at  the  trial  term.  The- medial 
judgment,  as  we  have  seen,  must  have  directed  a  trial  in  one 
of  the  following  modes,  to  wit,  by  compurgation,  by  witnesses, 
by  charters,  by  record,  by  the  ordeal,  by  the  duel,  or  by  inqui- 
sition or  recognition.  Each  of  these  will  now  be  considered  in 
order,  from  the  final  point  of  view,  the  trial. 

First,  then,  of  compurgation.  This,  in  its  essential  feature, 
consisted  in  the  bringing  forward  of  a  specific  number  of 
persons,  by  the  party  adjudged  to  give  the  proof  to  make 
oath  in  his  favour ;  the  number  varying  in  ordinary  cases 
from  one  to  forty-eight,  being  dependent  upon  the  rank  of  the 
parties,  of  the  compurgators  (one  thegn,  for  example,  being 
equal  to  six  villeins),  the  value  of  the  property,  if  property  were 
involved,  and  the  nature  of  the  suit."  These  persons  were  to 
swear,  not  to  the  facts,  but  to  the  credibility  of  the  party  for 
whom  they  appeared  ;  though  knowledge  of  the  facts  was 
probably  deemed  an  important  consideration  in  making  the 
selection. 2 

'  Brunner,  Schwurg.  49;  Essays  in  Ang.-Sax.  Law,   1S6;  Schmid,  Gesetze, 
Glossary,  Eideshiilfe,  p.  564. 

^  Kritisclie  Ucberschau,  v.  204. 


302  HISTORY    OF   PROCEDURE. 

There  appears  to  have  been  no  class  limitation  in  the 
selection  of  the  compurgators  :  it  was  only  necessary  that 
those  selected  should  be  able  to  swear  to  the  purity  of  their 
principal's  oath.  This  would  naturally  require  persons  who 
were  best  acquainted  with  him,  and  would  include  his  rela- 
tives," neighbours, 2  and  peers.^  The  compurgators,  in  the 
first  half  of  the  twelfth  century  and  earlier,  if  not  later,  were 
either  "electi  "  by  the  party  making  the  proof,  or  they  were 
"nominati"  by  the  judge  or  sheriff ;  those  "  nominati,"  however, 
being  subject  to  challenge  for  hatred  or  other  good  ground, 
as,  for  example,  that  they  were  not  "  legal  men."'^-  In  some 
cases  the  number  of  nominate  persons  was  greater  than  the 
number  required,  and  out  of  them  the  principal  was  permitted 
to  choose  his  men  ;  but  sometimes,  possibly,  in  the  triple  pur- 
gations, the  judge  selected  the  actual  compurgators. ^  Selec- 
tion by  lot  was  also  in  use.  Thus^  by  the  Dane  law,  in  the 
triple  purgation,  the  selection  was  made  by  lot  out  of  forty- 
eight.*^  It  may  fairly  be  assumed  that  where  a  serious  charge 
of  crime  was  brought,  and  the  presumption  against  the 
accused  was  strong,  the  selection  was  taken  out  of  his  hands, 
partly  or  possibly  wholly,  according  to  the  nature  of  the  case.  7 

'  "Qui  ex  parte  patris  erunt,  fracto  juramento,  qui  ex  matenia  cognatione 
erunt,  plane  se  Sacramento  juratores  advertant." — Hen.  I.  c.  64,  §  4.  See  Law  of 
Northumbrian  Priests,  c.  51. 

-  "  Nominentur  ei  sex  Iiomines  de  eadem  geljurscipa,  in  qua  ille  residens  est." 
Edw.  i.  c.  I,  §  4.     See  /Ethelstan,  i.  c.  9  ;  Hen.  I.  c.  66,  §  6. 

3  "  Jurabunt,  congruo  numero  consacramentalium,  et  qualitate  parium  suorum 
retenta." — Hen.  I.  c.  64,  §  2.     See  Essays  in  Ang. -Saxon  Law,  298. 

•♦  "  Et  ibi  testes  nominati  et  electi  sunt  habendi,  nisi  odium  vel  aliquid  com- 
petens  in  nominacione  proponatur,  cur  habei"i  non  possint." — Hen.  L  c.  31,  §  8. 

s  "Nominentur  ei  xiiii.  et  acquirat  ex  eis  xi." — Hen.  L  c.  66,  §  6.  According 
to  the  same  laws,  §  9,  in  cases  of  theft,  burning,  robbery,  and  the  like,  "  oportet, 
lit  die  congruo  xxx.  consacramentales  habeat,  quorum  nullus  in  aliquo  reculpandus 
sit,  et  cum  xv.  ex  eis,  quos  justicia  selegerit,  sextusdecimus  juret,  sicut  causa 
dictabit."  But  the  "quos"  may  as  well  refer  to  the  "xxx."  as  to  the  "xv." 
which  would  give  the  prisoner  the  selection  from  the  whole  number  selected  by 
the  judge.  This  is  Schmid's  interpretation,  without  any  suggestion  of  ambiguity. — 
Gesetze,  566. 

*  lb.  §  lo.      Election  by  lot  is  mentioned  again  in  c.  64,  §  i. 

'    Sec  upon  this  subject  Schniid,  (jc^etze,  566. 


THE   TRIAL    TERM. 


303 


Whether  such  a  practice  prevailed  in  civil  cases  in  the  Norman 
period  does  not  appear.     Probably  it  did,  in  serious  cases. 

In  small  matters  it  seems  that  the  oath  taken  was  the 
"sacramentum  planum,"  which  is  defined  to  be  "non  solenne, 
quod  summaric  et  de  piano  prit*statur,  sine  delectu  verborum 
aut  locorum."'  In  important  causes  the  oath  was  "  obser- 
vatum  "  or  "verborum  observantiis,"  that  is,  with  observance 
of  a  formula.  In  serious  criminal  cases  triple  compurgation 
corresponding  to  the  triple  ordeal  was  required,  at  least  of 
the  common  people.-  This  appears  to  have  been  what  was 
called  the  "sacramentum  frangens  "  or  "  fractum."  Between 
the  extremes  of  the  oath  plaimni  and  the  oath  fractinn  ap- 
pears to  have  fallen  the  oath  simplex,  supported  by  a  less 
number  of  consacramentals  than  the  last  named,  but  still 
observatuiii.  These  are  terms  of  the  Laws  of  Henry  the 
First; 3  but  they  probably  represent,  in  substance,  the  whole 
Norman  period.  The  law,  however,  varied  much  in  details  at 
all  times  in  different  localities. "l- 

Before,  however,  the  compurgators  made  the  oath  "  obser- 
vatum,"  the  parties  being  before  the  court  for  the  trial  in 
conformity  with  the  judgment  delivered  at  the  issue  term,  the 
presiding  judge,  according  to  the  practice  in  Normandy,  which 
probably  prevailed  also  in  England,  asked  the  party  who  had 
given  security  to  furnish  the  proof,  if  he  was  ready  to  make 
his  law;  "si  il  est  garni  et  apparellie  de  feire  sa  lei."^ 
Answering  in  the  affirmative,  the  judge  proceeded  to  declare' 
the  oath-formula  to  be  sworn  by  him  ;  which  he  repeated  after 
the  judge,  word  for  word. 

The  compurgators'   oath  {observatnjii)   then  follows ;    the 

'  Anc.  Laws,  Glossary,  Oath, 

^  Laws  Hen.  I.  c.  64,  §  2,  as  to  Wessex  ;  c.  66,  %  10,  as  to  Mercia.  "Lad" 
or  "  lada  "  was  exculpation  either  by  compurgation  or  by  the  ordeal. 

3  See,  e.g.,  c.  64.  ■*  Ibid. 

5  Cont.  de  la  Vicomte  de  I'Eau  de  Rouen,  art.  49,  quoted  by  Brunner,  Schwurg. 
184.  To  "make  one's  law"  was  in  the  Norman  period  used  also  of  the  ordeal. — 
Assise  of  Clar.  cc,  13,  14.     Each  was  a  waging  oilnw. 


304  HISTORY   OF   PROCEDURE. 

Anglo-Saxon  formula  for  which,  perhaps,  was:  "  By  the  Lord, 
the  oath  is  clean  and  unperjured  which  N.  has  sworn."  i  This 
may,  however,  have  been  the  formula  used  at  the  finding  and 
claim  of  stolen  goods,  upon  the  introduction  of  the  procedure 
called  the  anefang.  But  the  compurgatory  oath  at  the  trial 
term  could  not  have  been  materially  different.  The  oath  as 
made  in  Normandy  has  been  preserved  in  two  forms.  Accord- 
ing to  the  Grand  Coutumier,  one  form  was  as  follows  :  "  The 
oath  which  G.  has  sworn  he  has  sworn  truly,  so  help  me  God 
and  his  saints  ;  " — "  Du  sermcnt  que  Guillaume  a  iure,  sauffre- 
ment  a  iure,  ausi  m'aist  Dieu  et  ces  sains." 2  According  to 
the  Somma,  "  De  sacramento  quod  T.  juravit  salvum  jura- 
mentum  Juravit,  si  nos  3  Deus  adjuvet  at  hec  sancta;"^  a  trans- 
lation merely  of  the  foregoing.  According  to  the  Norman 
Coutumier  de  la  Vicomte  de  I'Eau  dc  Rouen,  the  form  used 
in  that  district  was  :  "  Si  me  ait  Dex  et  ces  sains  et  tous  autres 
que  N.  a  dit  voir  de  ce  dont  il  a  fait  serement." 

The  compurgators,  who  in  earlier  times  appear  to  have 
sworn  with  joined  hands  and  united  voice  (a  survival  of  which 
custom  the  Somma  as  above  quoted  may  suggest),  now  swore 
separately,  one  by  one,  each  repeating  the  same  formula, 
with  hand  upon  the  Gospels  :  "  Et  doit  chascun  des  tcsmoins 
estre  escari  [separated]  et  oi  par  soi,  sa  mcin  mise  sur  le 
livre."^  A  single  mistake  in  repeating  the  formula,  whether 
made  by  the  principal  or  by  any  of  the  compurgators^  was 
fatal  to  the  party's  case. 

This  form  of  compurgation  was,  in  Normandy  and  oc- 
casionally in  England,  called  lex  disraishuu.  It  was  a  simple 
traverse  of  the  plaintiff's  case.  When  the  defendant's  answer 
amounted  to  what  in  modern  pleading  would  be  called  con- 
fession   and   avoidance,  the   proof  was   in    Normandy  called 

'  I  Anc.  Laws  and  Inst.  i8i  (8vo  ed.). 

=  Grand  Cout.  c.  85  (ed.  1523). 

3  Brunner  well  thinks  this  a  mistake  for  "me." — Schwurg.  185,  note. 

*  Somma,  lib.  2,  c.  19,  §  4. 

5  Cout.  de  la  Vic.  dc  I'Fau  de  R.  art.  40  ;  Brunner,  185. 


THE   TRIAL   TERM.  305 

lexprohabilis^  a  term  seldom  used  in  the  English  chronicles  or 
charters.  Of  this  there  were  in  Normandy  three  classes 
belonging  to  the  procedure  by  compurgation,  and  two  to  that 
by  witnesses; I  some  of  which  certainly  are  to  be  found  in 
England. 

The  first  of  these  was  sworn  by  a  single  person,  and  was 
commonly  employed  to  establish  the  exemption  of  a  franchise 
from  some  form  of  taxation.  An  English  example  may  be 
found  in  the  Church  at  Abingdon  v.  The  King's  Collcctors,2 
aimo  1 1 19.  The  Abingdon  church  had  previously,  by  decree 
of  court,  been  exempted  from  geld,  but  the  king's  tax  officers 
still  levied  sums  of  money  from  time  to  time,  until  at  last 
complaint  was  made  to  the  king.  It  was  thereupon  ordered, 
apparently  by  the  Court  of  Exchequer,  that  some  one  person 
of  the  church  should  make  oath  to  the  exemption  ;  and  this 
was  to  be  final.  A  County  Court  was  accordingly  convened  by 
the  sheriff,  at  which  Roger  de  H.,  a  homager  of  the  monastery, 
"affidavit  fidem  in  manu  ipsius  vicecomitis,  vidcnte  toto 
comitatu,"  that  one  hundred  and  forty  hides  of  land  belonging 
to  the  church  ought  to  be  exempt  from  tax. 

Many  writs  of  the  kings  also  exist  in  which  monasteries 
are  exempted  from  customs  and  dues  of  various  kinds,  so  far 
as  their  men  can  swear  that  they  have  been  released  from 
such  burdens.^ 

The  essoin  de  via  curiae  was  likewise  sworn  in  Normandy 
with  a  single  person  (the  bearer  of  the  essoin)  brought  by  the' 
principal,  or  by  the  principal  alone,  according  to  the  election 
of  the  opposite  party.  In  case  of  the  essoin  de  infirmitate 
two  persons  appeared  before  the  court,  the  bearer  of  the 
essoin  and  a  witness.  A  like  practice  prevailed  as  to  proof  of 
vouching  to  warranty.  In  other  minor  cases  the  oaths  of 
three  might  be  required,  and  in  still  others  the  oaths  of  five.^ 

This   was   the   practice    in    Normandy   in  the  thirteenth 

'  See  Brunner,  Scliwurg.  1S6-189.  =  Tlacita  Ang.-Norm.  113. 

^  lb.  88,  106,  126,  149,  203,  204.  "<  Somma,  lib.  2,  c.  62,  §§  3-6. 

X 


3o6  HISTORY   OF   PROCEDURE. 

century.  Among  the  cases  in  which  the  oaths  of  five  were 
there  required  was  the  action  for  debt.'  The  Norman 
formula  in  this  action,  as  given  by  the  Somma,  required  the 
principal  (if  his  defence  was  payment)  to  say :  "  Hoc  audiant 
omnes,  quod  ego  persolvi  huic  N.  domino  mco  xxx.  denarios, 
quos  ei  debebam,  si  Deus  me  adjuvet  et  sacrosancta."  Then 
the  first  of  the  compurgators  said  :  "  De  sacramento  quod  N. 
fecit  salvum  sacramentum  fecit,  si  Deus  me  adjuvet  et  sacro- 
sancta." And  the  rest  followed  "  simili  modo."  It  is  added 
that  the  oath-makers,  both  in  the  lex  prohabilis  and  in  the  lex 
disraisiuce,  ought  to  offer  themselves  and  not  be  summoned 
or  compelled  to  come  into  court.^ 

Compurgation  appears  to  have  been  a  permitted  mode  of 
trial  in  criminal  cases  generally  in  the  first  half  of  the  twelfth 
century,  and  earlier ;  though  it  seems  that  instead  of  the 
"  sacramentum  frangens,"  or  triple  compurgation,  the  ac- 
cused often  preferred  the  ordeal,  and  succeeded  in  having  it.^ 
Thus  between  the  ordeal  and  the  duel,  compurgation  was 
gradually  losing  or  shifting  ground.  Pledges  in  criminal 
cases,  and  perhaps  in  civil  cases,4  might  acquit  themselves 
by  compurgation  upon  failing  to  produce  their  principals  in 
accordance  with  the  terms  of  their  engagement.  It  was  de- 
clared by  the  laws  of  William  the  Conqueror  (a  custumal  of 
the  twelfth  century)  that  if  anyone  appealed  of  larceny  or 
robbery  was  released  upon  pledge  to  have  him  before  the 
court  for  justice,  and  afterwards  fled,  respite  should  be  given  to 
the  pledging  party,  according  to  the  Mercian  law,  for  a  month 
and  a  day  to  find  the  fugitive.     If  found  within  the  time,  he 

•  There  is  no  evidence  that  any  definite  regulation  as  to  number  prevailed 
either  in  England  or  in  Normandy,  in  actions  of  debt,  before  the  thirteenth  cen- 
tury. Probably  there  was  no  such  regulation.  Compurgation  in  debt  was  in  an 
unsettled  state  in  the  twelfth  century,  as  will  presently  be  seen.  The  subject  is 
referred  to  here  mainly  to  show  the  Norman  formula.  ^  lb.  §  6. 

3  Hen.  I.  c.  64,  §  I.  The  practice  is  here  deprecated  as  wrongful.  "  Malorurn 
autem  infestacionibus,  et  perjurancium  conspiracione,  depositum  est  frangens 
juramentum,  ut  magis  Dei  judicium  ab  accusatis  eligatur."  As  to  the  generality  of 
compurgalion  in  criminal  cases,  sec  ib.  §  2.  *♦  Infra. 


THE   TRIAL  TERM.  307 

was  to  be  delivered  to  justice;  but  if  not,  the  party  who  had 
entered  into  the  engagement  of  pledge  was  to  swear  with  the 
twelfth  hand  ("  duodecima  manu  ")  that  when  he  made  the 
engagement  he  did  not  know  that  the  fugitive  was  a  thief  (or 
robber),  that  he  did  not  flee  by  his  counsel  or  aid,  and  that  he 
could  not  produce  him  for  justice.^  What  the  West-Saxon 
and  Dane  procedure  was  is  not  stated  ;  but  probably  it  was 
the  same.  Differences  relating  to  the  penalty  imposed  upon 
the  pledge  for  failing  to  perform  his  engagement  are  alone 
specified. 2  A  lord  might  also  prove  his  innocence  of  the 
escape  of  any  of  his  servants  (for  all  of  whom  he  was  respon- 
sible) charged  with  the  commission  of  crime,  by  compur- 
gation niaini  scxta,  or  by  a  fine  paid  to  the  king.^  The  same 
was  probably  allowed  also  to  the  headman  of  a  frankpledge, 
upon  the  escape  of  one  for  whom  the  body  was  responsible.^ 

Compurgation  continued  to  be  employed  in  criminal  cases, 
though  within  unsettled  limits,  being  affected  to  an  extent 
which  cannot  clearly  be  ascertained^  by  the  encroachment  of 
the  ordeal  and  the  duel,  until  the  year  1166  ;  when  the  Assise 
of  Clarendon  substituted  the  ordeal  for  it  as  to  persons  accused 
by  the  presenting  jurors  or  by  the  public  voice.  Some  of  the 
boroughs,  however,  retained  by  charter  the  ancient  usage,  as 
we  have  elsewhere  seen.^  Trespasses  and  assaults  were  com- 
monly tried  in  the  manors,  if  not  also  in  the  superior  courts, 
by  compurgation  throughout,  probably,  the  eleventh  and 
twelfth  centuries.  This  was  true,  at  least  in  the  time  of 
Glanvill,  even  in  cases  in  which  a  tenant  was  accused  of 
having  laid  violent  hands  upon  his  lord.  The  tenant  was 
permitted  to  purge  himself  against  the  accusation  of  his  lord 
by  three  persons  ("  tertia  manu  ")  or  by  as  many  as  the  court 
should  award.'^ 

This  mode  of  trial  was  used  also  in  civil  cases  throughout 

'  \Vm.  I.  i.  c.  3.  -  Ibid.  '  lb.  c.  52. 

"*  Comp.  ib. ;  Wm.  I.  iii.  c.  14.  s  Ante,  pp.  2,  296. 

^  Glanvill,  lib.  9,  c.  I,  §  8.     See  also  I  Pike,  Hist,  of  Crime,  123. 

X    2 


3oS  HISTORY   OF    PROCEDURE. 

the  twelfth  century.  In  what  was  afterwards  the  typical 
subject  of  compurgation,  the  action  of  debt  for  money  (not  due 
by  reason  of  the  relation  of  lord  and  man),  the  practice  as  Late 
as  the  time  of  Glanvill  had  not  become  settled  ;  as  has  already 
been  stated. i  Glanvill  says  that  it  was  a  question  whether  in 
a  proceeding  against  a  surety  the  defendant  could  escape  lia- 
bility by  denying  the  engagement  by  his  own  oath  and  the 
oaths  of  as  many  men  as  the  court  should  direct,  or  whether 
the  trial  should  be  by  duel.  Some,  he  says,  were  of  the  opinion 
that  the  creditor  was  entitled  to  proof  from  the  suretyship  by 
compurgation,  unless  the  surety,  before  it  was  finally  proved 
in  that  manner,  down  to  the  moment  of  the  compurgation,  ten- 
dered the  duel. 2  If,  however,  the  creditor  were  able  to  produce 
a  charter,  the  nature  of  the  proceedings  was  changed  to  trial 
by  charter. 3 

Trial  by  witnesses  to  the  fact  was  very  common  both  in 
the  prc-Norman  and  in  the  Norman  periods.  Unlike  com- 
purgators who  swore  to  their  principal's  credibility,  witnesses 
to  the  fact  swore  to  matters  de  visit  ct  auditu.  They  differed, 
however,  essentially  from  the  inquisitors  and  recognitors  of 
the  time,  and  from  modern  witnesses.  They  gave  their  testi- 
mony in  ordinary  cases  in  accordance  with  the  narrow  formula 
of  the  medial  judgment ;  they  were  not  examined  as  to  the  facts ; 
and  they  appeared  (in  this  particular  like  modern  witnesses)  at 
the  instance  of  the  party  for  whom  they  testified.  The  judge 
might  examine  them  as  to  their  competency  ;  but  if  this  were 
established — if  they  were  shown  to  be  legal  men  of  the  neigh- 
bourhood— they  were  entitled  to  give  answer  according  to  the 
prescribed  formula.  They  were  triers,  not  witnesses  in  the 
modern  sense  ;  and  few  of  the  questions  which  arise  at  the 
present  day  upon  the  testimony  of  witnesses,  such  as  the 
admissibility  of  evidence,  could  arise  under  the  procedure  of 
the  Norman  (or  pre-Norman)  period.    Both  civil  and  criminal 

'  Ante,  pp.  297,  29S.  =  Glanvill,  lib.  10,  c.  5,  §  7. 

•  lb.  c.  12, 


THE   TRIAL   TERM.  309 

cases  were  tried  in  this  way.  Civil  cases  may  be  found  in  the 
records  almost  without  number.^ 

Criminal  causes  were  defended  through  trial  by  wit- 
nesses less  frequently,  it  seems,  than  by  other  modes  of  trial ; 
and  before  the  close  of  the  twelfth  century  charges  of  crime 
appear  commonly,  if  not  always,  to  have  been  defended  by 
compurgation,  ordeal,  or  duel.  The  procedure  in  a  single 
criminal  trial  (apparently)  by  witnesses,  has  been  preserved  in 
the  so-called  Laws  of  Edward  the  Confessor ;  which  may  be 
taken  to  represent  the  period  from  the  Conquest  (and  before) 
until  the  middle  of  the  next  century.  The  procedure  relates 
to  a  charge  by  the  relatives,  male  and  female  (in  the  propor- 
tion of  two  of  the  former  to  one  of  the  latter),  that  their 
kinsman  had  been  unjustly  slain  and  laid  among  robbers. 
After  the  pledging  of  security  by  the  accusers  and  by  the 
accused,  and  defence  alleged  that  the  slain  man  had  been 
justly  slain,  and  justly  lay  among  robbers  according  to  law, 
as  a  robber,  with  a  statement  concerning  the  robbery  and  the 
manner  of  the  slaying  ;  the  accused  proceeded  to  name  a 
chief  judge,  judges,  and  legal  Avitnesses  of  the  neighbourhood 
("  nominet  justiciarium  et  judices  et  testes  de  vicinis  legales").^ 
That  these  "testes"  were  witnesses  in  the  technical  sense,  and 
not  compurgators,  is  made  probable  by  the  accused  naming 
them,  and  by  what  follows.  "  And  if  they  will  warrant  him  that 
justice  was  justly  done  of  the  man  for  his  robbery,  the  slayer 
shall  be  quit,  and  those  who  made  the  complaint  shall  pay 
the  sum  pledged." -^ 

There  were  several  classes  of  witnesses  ;  transaction  wit- 
nesses, TCCordatGi'cs,  community  witnesses,  and  witnesses  whose 
rank  and  station  entitled  them  to  special  consideration.  The 
first  class  were  those  before  whom  sales  were  made,  and  other 

'  See  e.g.  Placita  Ang.-Norm.  18,  31,  39,  53,  135,  152,  182,  188.  The  use  of 
the  word  "  testes  "  in  the  records  is  never  decisive.  That  often  meant  compurgators. 
But  those  who  "saw  and  heard"  were  witnesses  in  the  technical  sense. 

*  Compare,  as  to  choosing  a  judge,  ante,  p.  57. 

3  Laws  Edw.  Conf.  c,  36.     As  to  what  followed  conviction,  see  ib. 


310  HISTORY   OF    PROCEDURE. 

business  required  to  be  transacted  in  public  done  ;  the  second 
were  those  who  bore  record  of  the  proceedings  in  a  particular 
litigation  when  a  question  thereof  was  raised,  the  witnesses 
not  consisting  in  England  of  any  constituted  body,  but  ap- 
pointed upon  the  particular  occasion  out  of  the  best  men 
capable  of  acting  ;  while  community  witnesses,  as  the  term 
implies,  were  general  witnesses  of  the  neighbourhood,  capable 
of  giving  testimony  in  all  cases,  probably  even  to  ajforcing 
that  of  the  first  two  classes,  but  not  to  taking  their  places. 

When  the  witnesses  were  men  of  the  church,  or  perhaps 
laymen  of  high  rank,  it  was  not  necessary  for  them  to  appear 
at  court  and  make  oath  in  the  common  form.  Such  persons 
frequently,  if  not  usually,  sent  their  testimony  to  court  in  the 
form  of  a  deposition,  prepared  in  any  manner  they  saw  fit, 
and  not  necessarily  conforming  to  the  oath-formula  of  the 
court.  The  deposition  was  made  without  oath,  but  generally 
contained  the  offer  to  make  its  statements  good,  according  to 
the  judgment  of  the  court,  as  in  other  cases.  The  records 
abound  with  examples. ^ 

Apart,  however,  from  the  use  of  depositions,  trial  by 
witnesses,  in  its  application  to  civil  as  well  as  to  criminal 
causes,  appears  to  have  begun  to  lose  ground  as  early  as  the 
middle  of  the  twelfth  century  ;  its  vitality  civilitcr  being 
gradually  absorbed  on  the  one  side  by  compurgation  and  on 
the  other  by  the  recognitions.  But  the  chief  use  of  witnesses, 
of  whatever  class,  especially  in  criminal  cases,  appears  to  have 
been  to  enable  a  plaintiff  or  an  appellor  to  make  a  presumptive 
case  against  a  defendant  or  appellee,  rather  than  as  a  mode  of 
defence  to  an  action.  Indeed,  witnesses  appear  to  have  been 
employed  quite  as  often  in  the  decision  of  incidental  matters  as 

'  See  the  depositions  of  bishop  GeofTiey,  Placita  Ang. -Norm.  287;  of  Bernard 
of  St.  David,  ib.  150;  of  Theobald,  archbishop  of  Canterbiuy,  ib.  150,  182;  of 
Nicholas  of  Llandaff,  ib.  184,  187  ;  and  the  depositions  in  the  case  of  Church  of 
York  V.  Church  of  Gloucester,  189-196.  In  the  last  of  these  David  of  Worcester 
offers  to  undergo  the  ordeal  in  support  of  his  testimony.  Sec  also  the  deposition 
of  the  earl  of  Hereford,  ib.  258. 


THE   TRIAL   TERM.  311 

in  the  capacity  of  final  triers  of  a  cause,  if  not  oftcner.  In  the 
first  and  chief  of  tliese  particulars,  if  not  in  the  second,  the  use 
of  witnesses  continued  unimpaired. 

With  compurgation  and  party-witness  the  Norse  "buakvidr," 
or  verdict  of  neighbours,  may  be  compared.  For  this  purpose 
the  case  of  Flosi  w\]\  be  resumed  ;  who,  it  will  be  remembered, 
was  to  be  tried  by  an  inquest  of  neighbours,  witnesses  to 
the  slaying.  There  was,  however,  no  defence  to  the  merits,  a 
fact  not  to  be  lost  sight  of.  Flosi  must  be  saved,  if  at  all, 
by  superior  leadership  in  the  intricacies  and  formalities  of 
pleading.  Still,  all  the  steps  appear  which  would  be  required 
in  a  case  that  was  to  stand  or  fall  on  the  merits,  save  a  denial 
or  other  answer  to  the  accusation.  It  may  be  added  that 
pleadings  were  conducted  in  such  cases  under  the  Norse  pro- 
cedure during  what,  in  the  more  general  Teutonic  system,  was 
the  term  for  trial  only.  We  have,  then,  in  Flosi's  case,  a 
pleading  and  a  trial  term  together. 

The  Althing  having  convened,  lots  are  first  cast  as  to  the 
order  of  suits,  in  which  Mord  has  the  fortune  to  be  first.  He 
now  takes  witness  that  he  excepts  all  mistakes  in  the  words  of 
his  pleading,  whether  the  words  were  too  many  or  wrongly 
spoken,  and  claims  the  right  to  amend  until  he  has  put  his 
words  into  lawful  form.  Then  he  takes  witness  that  he  calls 
upon  Flosi  to  listen  to  his  oath  and  declaration,  and  to  all  the 
steps  that  he  may  take.  Thereupon  Mord  thus  makes  oath  : 
"  I  take  witness  to  this,  that  I  take  an  oath  on  the  book,  a 
lawful  oath,  and  I  say  it  before  God,  that  I  will  so  plead  this 
suit  in  the  most  truthful  and  most  just  and  most  lawful  w^ay,  so 
far  as  I  know  ;  and  that  I  will  bring  forward  all  my  proofs  in 
due  form,  and  utter  the  mfaithfully  so  long  as  I  am  in  this  suit." 

Then  he  speaks  as  follows,  recalling  all  the  steps  taken  :  "  I 
have  called  Thorodd  as  my  first  witness,  and  Thorbjorn  as  my 
second.  I  have  called  them  to  bear  witness  that  I  gave  notice 
of  an  assault  laid  down  by  law  against  Flosi,  Thord's  son,  on 
that  spot  where  he,  Flosi,  Thord's  son,  rushed  with  an  assault 


312  HISTORY   OF   PROCEDURE. 

laid  down  by  law  on  Hclgi,  Njal's  son,  when  Flosi,  Thord  s 
son,  wounded  Helgi,  Njal's  son,  with  a  brain  or  a  body  or 
a  marrow  wound,  which  proved  a  death  wound,  and  from 
which  Helgi  got  his  death.  I  said  that  he  ought  to  be  made 
in  this  suit  a  guilty  man,  an  outlaw,  not  to  be  fed,  not  to  be 
forwarded,  not  to  be  helped  or  harboured  in  any  need.  I  said 
that  all  his  goods  were  forfeited,  half  to  mc  and  half  to  the 
men  of  the  quarter  who  have  the  right  by  law  to  take  the 
goods  which  he  has  forfeited.  I  gave  notice  of  the  suit  in  the 
Quarter  Court  into  which  the  suit  ought  by  law  to  come.  I 
gave  notice  of  that  lawful  notice  ;  I  gave  notice  in  the  hearing 
of  all  men  at  the  Hill  of  Laws  ;  I  gave  notice  of  this  suit  to  be 
pleaded  now,  this  summer,  and  of  full  outlawry  against  Flosi, 
Thord's  son.  I  gave  notice  of  a  suit  which  Thorgeir,  Thorir's 
son,  had  handed  over  to  me  ;  and  I  had  all  these  words  in  my 
notice  which  I  have  now  used  in  this  declaration  of  my  suit. 

1  now  declare  this  suit  of  outlawry  in  this  shape  before  the 
court  of  the  Eastfirthers  over  the  head  of  John,i  as  I  uttered 
it  when  I  gave  notice  of  it." 

This  is  repeated  with  the  single  change  of  stating  the 
wounds  first.  Then  Mord  calls  upon  the  two  persons  named 
to  bear  witness  of  these  steps,  which  they  do  twice  in  the  same 
lengthy  formula,  speaking  with  one  voice  after  severally  stating 
their  names.  Next,  the  witnesses  to  the  handing  over  the  suit 
to  Mord  appear  and  testify  in  unison  to  the  fact. 

Again  Mord  speaks  :  "  I  take  witness  to  this,"  said  he, 
"  that  I  bid  those  nine  neighbours  whom  I  summoned  ^vhen  I 
laid  this  suit  against  Flosi,  Thord's  son,  to  take  their  seats 
west  on  the  river  bank  ;  and  I  call  on  the  defendant  to  challenge 
the  inquest.  I  call  on  him  by  a  lawful  bidding  before  the 
court,  so  that  the  judges  may  hear."  And  this  demand  upon 
Flosi  is  repeated  by  him.  Then  he  takes  witness  to  the  fact 
that  he  has  taken  all  necessary  steps,  repeating  them  shortly, 
and  closing  thus  :   "  I  take  witness  ....   that  I  shall  not  be 

'  As  to  tliis  term  of  fiction,  see  i   Dasenl,   Bunit  Njal,  Intiod.  p.   171,  n.  ; 

2  lb.  i>.  245,  n. 


THE   TRIAL   TERM.  3i3 

thought  to  have  left  the  suit  thouL,di  I  go  away  from  the  court 
to  look  up  proofs  or  on  other  business." 

It  is  now  Flosi's  turn  to  make  such  objection  as  he  can  ; 
and  he  proceeds  to  challenge  successfully  four  of  the  nine 
neiglibours  sitting  on  the  inquest  ;  thinking  that  he  had 
thereby  quashed  the  suit.  Mord,  however,  knows  the  law,  and 
declares  the  challenge  is  of  no  effect,  since  an  inquest  might 
consist  of  five  or  nine.  No  other  objection  being  raised  at 
present,  Mord  now  requires  the  five  to  give  their  verdict ; 
which  they  do  in  lengthy  formalism,  after  the  manner  of 
Mord^s  declaration,  above  given,  pronouncing  Flosi  guilty. 
And  this  finding  is  also  repeated.  Mord  thereupon  takes 
witness  of  the  finding,  and  then  calls  upon  Flosi  "  to  begin  his 
defence,"  the  time  for  which,  according  to  modern  ideas  of 
practice,  had  passed. 

F"losi  now  appears  by  his  counsel,  Eyjolf,  and  pleads 
successfully  to  the  jurisdiction  of  the  court  ;"  which  by  the 
early  English  procedure,  at  least  in  the  middle  of  the 
thirteenth  century,  he  could  not  have  done  at  any  stage  of 
the  proceedings  without  first  having  pleaded  to  the  merits.^ 
Eyjolf  takes  witness  to  the  facts  concerning  his  allegation  as 
to  the  jurisdiction,  and  the  witness  duly  confirms  it.  Then  in 
formal  language  he  forbids  the  judges  (not  the  inquest  of 
neighbours)  to  utter  in  judgment  ;J  and  the  suit  in  this  form 
is  at  an  end. 

It  happened,  however,  that  word  had  reached  the  ears  of 
Mord  and  his  friends  that  Flosi  had  paid  money  to  Eyjolf  (a 
"retainer  "  fee)  for  undertaking  his  defence,  which  was  contrary 


^  There  had  been  some  sharp  practice  in  tlic  dark  on  the  part  of  Flosi,  which 
made  this  possible. 

"  Bracton,  140  ;  l  Britten,  102  (Nichols). 

3  It  seems  that  this  did  not  necessarily  prevent  the  judges  from  pronouncing 
judgment,  for  Eyjolf  still  appears  before  the  court,  endeavouring  to  divide  the  judges, 
from  which  it  is  to  be  inferred  that  they  were  inclined  to  decide  for  Mord  notwith- 
standing his  mistake.  Mord,  however,  quietly  hastens  away  and  anticipates  Eyjolf 
with  a  suit  in  the  Fifth  Court  for  bribery  and  contempt,  greatly  to  the  latter's 
confusion. 


314  HISTORY   OF   PROCEDURE. 

to  law  :  such  business  was  to  be  an  honorar'nan,  a  thing'  which 
has  been  heard  of  in  the  history  of  modern  Enghsh  law. 
Mord  at  once  proceeds  to  take  advantage  of  this  fact,  and  of 
the  additional  fact  that  a  witness  brought  forward  by  Eyjolf 
was  incompetent,  and  now  sets  a  suit  on  foot  in  the  Fifth 
Court  for  outlawry  against  both  Flosi  and  his  counsel,  Eyjolf. 

Mord  goes  to  the  Hill  of  Laws  for  this  purpose,  and  makes 
summons  :  "  I  take  witness  to  this,"  he  sa}^s,  "  that  I  summon 
Flosi,  Thord's  son,  for  that  he  gave  money  for  his  help  here  at 
the  Thing  to  Eyjolf,  Bolverk's  son.  I  say  that  he  ought  on 
this  charge  to  be  made  a  guilty  outlaw,  for  this  sake  alone  to 
be  forwarded  or  to  be  allowed  the  right  of  frithstow  ["  peace- 
place,"  i.e.  sanctuary],  if  his  fine  and  bail  are  brought  forward 
at  the  execution  levied  on  his  house  and  goods,  but  else  to 
become  a  thorough  outlaw.  I  say  all  his  goods  are  forfeited, 
half  to  me  and  half  to  the  men  of  the  quarter  who  have  the 
right  by  law  to  take  the  goods  after  he  has  been  outlawed. 
I  summon  this  cause  before  the  Fifth  Court,  whither  the  cause 
ought  to  come  by  law  :  I  summon  it  to  be  pleaded  now  and  to 
full  outlawry.  I  summon  with  a  lawful  summons.  I  summon 
in  the  hearing  of  all  men  at  the  Hill  of  Laws."  And  he 
summons  Eyjolf  in  like  manner,  and  then  summons  each 
again  for  bringing  forward  the  incompetent  witness.  The 
court  were  already  set,  and  thither  the  parties  now  went. 

The  case,  it  will  be  observed,  went  not  as  in  the  other  case 
before  the  ancient  Quarter  Court  of  the  island,  but  before  the 
Fifth  Court,  a  new  tribunal,  established  at  the  suggestion  of 
Njal,  for  hearing  appeals  from  and  contempts  of  the  Quarter 
Courts,  and  regulated  in  its  procedure  by  rules  suggested  by 
the  same  person.  The  interesting  feature  about  the  procedure 
of  this  court  is  that  ''  vouchers "  must  follow  the  oaths  of 
the  parties.  The  idea  is  akin  to  that  of  the  supporters  to  the 
oath  of  parties  in  the  English  and  Norman  practice  ;  and  it  is 
probable  that  Njal  was  now  but  introducing  a  modified  part  of 
the  Scandinavian  procedure  which  had  not  theretofore  been  in 


THE    TRIAL   TERM,  315 

use  in  Iceland.  Compurgation,  liowevcr,  in  the  general  sense  of 
the  Germanic  procedure,  appears  not  to  have  prevailed  in 
Iceland  before  the  union  with  Norway  in  the  thirteenth  century  : 
the  oath  of  the  vouchers  was  the  nearest  approach  to  it.  In  a 
broad  sense  this  was  compurgation  ;  but  it  prevailed  only  in 
the  Fifth  Court. 

Mord  makes  oath  before  the  Fifth  Court  as  follows  : 
"  I  take  witness,"  said  he,  "  to  this,  that  I  take  a  Fifth  Court 
oath.  I  pray  God  so  to  help  me  in  this  light  and  in  the  next, 
as  I  shall  plead  this  suit  as  I  know  to  be  most  truthful  and 
just  and  lawful.  I  believe  with  all  my  heart  that  Flosi  is  truly 
guilty  in  this  suit  if  I  may  bring  forward  my  proofs  ;  and  I 
have  not  brought  money  into  this  court  in  this  suit,  and  I  will 
not  bring  it.  I  have  not  taken  money,  and  I  will  not  take  it, 
neither  for  a  lawful  nor  for  an  unlawful  end." 

Then  two  of  the  men  wdio  were  Mord's  "  vouchers  "  went 
before  the  court  and,  somew^hat  after  the  manner  of  compur- 
gators, took  witness.  "  We  take  witness  that  we  take  an  oath 
on  the  book,  a  lawful  oath  :  we  pray  God  so  to  help  us  two  in 
this  light  and  in  the  next,  as  we  lay  it  on  our  honour  that  we 
believe  with  all  our  hearts  that  Mord  will  so  plead  this  suit  as 
he  knows  to  be  most  truthful  and  most  just  and  most  lawful, 
and  that  he  hath  not  brought  money  into  this  court  in  this 
suit  to  help  himself  and  that  he  will  not  offer  it,  and  that  he 
hath  not  taken  money,  nor  will  he  take  it,  either  for  a  lawful 
or  unlawful  end."i 

In  continuation  of  the  procedure  Mord  now  summoned 
nine  neighbours,  w^ho  lived  next  to  the  Thingfield,  on  the 
inquest  in  the  suit ;  and  then  Mord  took  witness  and  declared 
the  suits  which  he  had  set  on  foot  against  Flosi  and  Eyjolf. 
"  And  Mord  used  all  those  words  in  his  declaration  that  he 
had  used  in  his  summons."  Mord  "  declared  his  suits  for 
outlawry  in  the  same  shape  before  the  Fifth  Court  as  he  had 
uttered  them  when  he  summoned  the  defendants." 
'  Njal-Saga,  c.  143 ;  2  Dascnt,  264. 


3i6  HISTORY    OF   PROCEDURE. 

He  now  takes  witness  and  bids  the  nine  neighbours  on  the 
inquest  take  their  seats  west  on  tlie  river  bank,  and  then  with 
witness  calls  upon  Flosi  and  Eyjolf  to  challenge  the  inquest. 
This  they  cannot  do  ;  and  Mord  now  requires  the  nine  to 
utter  their  finding,  and  they  thereupon  find  the  defendants 
guilty.  Then  Mord,  as  in  the  previous  case,  calls  upon  the 
defendants  to  begin  their  defence,  repeating  the  steps  which 
he  had  taken.  The  president  or  "  lawman  "  sums  up  the  case, 
and  Mord  thereupon  forbids  the  defendants  from  pleading, 
and  then  calls  upon  the  judges  to  give  judgment.  This  would 
naturally  be  the  end  of  the  case,  but  there  were  more  judges 
"  in  banco  "  than  ought  to  be  there  in  pronouncing  judgment : 
Mord  makes  a  slip  on  this  point ;  and  this  case,  too^  falls  to 
the  ground.  1 

Of  trial  by  charters,  to  return  to  the  English-Norman 
procedure,  little  need  be  said.  The  effect  and  interpretation 
of  documents  were  ordinarily  matter  for  the  judges  ;  and  trial 
by  charters  had  in  consequence  more  of  the  features  of  trials 
of  the  present  day  than  any  other  form  of  litigation  except 
that  by  inquisition  and  recognition.  The  event  was  not,  as  it 
was  in  trial  by  wager  of  law  and  by  party-witness,  largely  and 
often  wholly  in  the  hands  of  the  party  who  had  delivered  the 
last  good  pleading.  Nor  was  it  necessarily  left  to  some 
external  test,  incapable  in  fact  of  discovering  to  the  court  the 
truth.  But  as  in  the  case  of  trial  by  inquisition,  the  truth  was, 
if  possible,  sought  by  a  rational  and  satisfactory  mode  of 
inquiry  ;  as  by  a  comparison  of  the  seal  in  question  with 
other  seals  of  the  same  party,  admitted  to  be  genuine.^ 

^  With  the  procedure  in  these  cases,  the  chapters  in  the  Gragas,  Thingskapa- 
thattr  {Dejndiciis  ordinandis),  vol.  i.  pp.  13  ct  scq.  (Schlcgel)  deserve  to  be  com- 
pared. The  Norse  procedure  is  there  minutely  described,  in  all  its  phases,  in 
sixty-two  chapters.  It  would  be  wholly  aside  from  the  purposes  of  this  book  to 
enter  into  further  details.  It  is  enough,  for  the  present  purpose,  to  show  its  outlines 
as  depicted  in  the  sagas  :  these  will  serve  the  purposes  of  comparison  with  the 
English  and  Norman  procedure.  Further  reference  to  the  Gragas  and  sagas  will 
be  made  later  on. 

=  Glanvill,  lib.  10,  c.  12,  §  4. 


THE   TRIAL   TERM.  317 

Whatever  a  defendant  pleaded  in  answer  to  the  plaintiff's 
claim  of  title  or  right  by  charter,  or  whatever  the  plaintiff 
may  have  replied  to  a  defence  of  right  or  title  by  charter,  the 
charter  must  be  produced  at  the  trial  and  become  the  main 
subject  of  contest.  The  defendant  or  plaintiff  must  allege 
either  that  the  charter  did  not  cover  the  subject-matter  of  the 
suit^  or  if  it  did,  that  it  had  been  annulled,  suspended,  or 
defeated  by  some  other  competent  charter,  document,  or  act, 
or  that  the  charter  itself  was  incomplete  or  a  forgery.  Which- 
ever of  these  positions  was  taken,  the  charter  in  question,  with 
the  counter-charter,  if  such  were  set  up,  must  be  produced, 
and  the  trial  thus  became  a  trial  by  charter. 

It  seems,  too,  that  in  such  cases,  when  at  least  a  charter 
brought  into  court  at  the  first  term  was  to  be  impeached,  the 
contest  did  not  necessarily  require  a  second  term,  but  could 
often  be  decided  on  the  issue-day.    The  case  of  Abbot  Walter 
v.  Gilbert  de  Baillol,i  already  referred  to  several  times,  shows 
this,  and  also  illustrates  to  some  extent  what  has  just  been 
stated   in    the   preceding   paragraph.      The    only   means    of 
defence  was  that  of  impeaching  the  plaintiff's  charters ;  but 
the   objection    made  to  these,  based  on  the   zvant  of  seals, 
was  not  attended  by  any  claim  on  the  part  of  the  defendant  of 
a  right  to  establish  their  invalidity  by  the  ordeal  or  by  the 
duel,  or  in  any  other  way  than  by  decision  of  the  judges  then 
and  there.     In  like  manner  when  in  Abbot  of  Battel  v.  Alan 
de  Bellofago^  the  defendant  set  up  title  by  a  charter  covering' 
the  subject  of  the  dispute,  and  the  plaintiff  raised  a  question 
as  to  the  genuineness  of  the  document,  there  was  no  intima- 
tion that  the  question  ought  to  be  decided  otherwise  than  by 
the  court  upon  inspection  and  comparison  ;  nor  was  there  any 
adjournment  of  the  case  for  decision  at  another  day.     The 
defendant  produces  his  charter  at  the  first  term,  the  plaintiff 
disputes  its  genuineness,  and  the  court,  after  examination  of 
the  instrument,  diligently  made,  so  far  rule  in  favour  of  its 

'  riacila  Aug. -Norm.  175.  -  lb,  245. 


3i8  HISTORY   OF   PROCEDURE. 

validity  as  to  suggest  a  compromise;  all  being  done  at  the 
same  sitting. f 

When,  however,  there  was  no  means  of  determining  of  the 
genuineness  of  the  seal  (for  if  that  was  genuine,  the  charter  at 
the  time  when  it  was  executed  was  valid)  by  inspection  or 
comparison,  then  the  party  offering  the  impeached  document 
might  have  recourse  to  the  duel  to  establish  the  seal  by  any 
proper  witness  (champion),  especially  by  one  whose  name  had 
been  inserted  by  authority  in  the  charter  in  question. 2  This 
would  of  course  require  another  term  ;  and  the  mode  of  pro- 
ceeding would  be  the  same  as  that  of  the  duel  in  a  writ  of  right 
or  other  case. 

Trial  by  record  was  the  mode  of  establishing  or  disproving 
a  fact  alleged  to  have  transpired  in  court  upon  some  stated 
occasion.  As  to  the  incidental  features  of  the  procedure  in 
such  caseSj  the  English  sources  give  no  specific  information. 
But  it  seems  reasonable  to  suppose  that  the  demand  of  a 
party  for  record  of  a  fact  could  be  objected  to  in  various  ways; 
as  by  a  denial  of  the  existence  of  any  legal  court  at  the  time 
and  place  asserted  by  the  other  party  with  a  sufficient  offer  of 
proof,  or  by  an  affirmation  by  the  objecting  party,  in  a  proper 
case,  that  he  had  never  been  legally  summoned  to  the  former 
trial.  Such  a  practice  prevailed  on  the  Continent.^  By  this 
practice  abroad  the  declaration  of  the  record  could  at  once  be 
had  if  enough  court-witnesses  (called  "  recordatores "  on  the 
Continent)  4  \vere  present  ;  otherwise  a  day  was  to  be  set  for 
the  purpose.5  According  to  the  Somma,  the  party  who  de- 
manded the  record  was  required  to  name  persons  by  whom 
the  same  was  to  be  declared.^  And,  unlike  the  case  of  an 
inquisition,  the  men  to  be  selected  were  (on  the  Continent)  to 
be  men  of  rank,  "  homines  magnaj  famai,"  "  quos  vite  meritum 

'  See  also  Glanvill,  lib.  10,  c.  12,  §§  3,  4.  -  Ibid. 

3  See  a  case  referred  to  by  Brunner,  Scliwurg.  193. 

■t  There  appears  to  have  been  no  constituted  body  of  recordatores  in  England 
as  there  was  on  the  Continent. 

5  Brunner,  193.  ^  Ibid. 


THE   TRIAL   TERM.  319 

et  providencie  honcstas  fcccrit  fide  dignos."i  An  oath  was 
taken  by  these  persons  before  making  their  dcckiration  that 
they  would  record  the  truth,  neither  adding  nor  omitting  any- 
thing.2  This  or  a  similar  oath  might  be  taken  as  well  before 
the  king  privately  as  in  open  court. ■^  In  the  former  case  the 
persons  were  simply  required  to  speak  the  truth  when  they 
came  into  court. 

The  distinction  prevailed  throughout  the  Norman  period 
which  prevails  at  the  present  day,  between  proceedings  of  the 
superior  and  those  of  the  inferior  courts.  The  former  alone, 
with  some  exceptions  made  by  special  law,  had  record  of  their 
proceedings  ;  the  meaning  of  which  was  then  as  now  that 
what  was  properly  reported  to  have  transpired  therein  was 
indisputable.  But  the  term  "record,"  asTnay  be  inferred  from 
what  has  just  been  said,  did  not  at  this  time  mean  or  imply 
an  enrolment  :  it  was  used  in  the  literal  sense  of  the  original 
word  "  recordari,"  to  recall  to  remembrance  ;  and  the  oral 
recording  had  the  same  effect  as  the  inspection  of  the  written 
record  at  the  present  day.4  The  proceedings  of  the  inferior 
courts,  testified  in  the  same  manner^  could  be  impeached. 

The  County  Court  was  an  inferior  tribunal  for  this  purpose 
in  most  particulars  ;  but  for  some  purposes  not  only  the 
County  but  the  Manorial  Courts  had  record  as  fully  as  the 
King's  Court.  Thus,  says  Glanvill,  if  the  duel  has  been 
waged  in  any  inferior  court,  and  the  suit  is  afterwards  trans- 
ferred into  the  King's  Court,  then,  as  to  the  claim  of  the' 
demandant,  the  defence  of  the  tenant,  and  the  words  in  which 
the  duel  was  adjudged  and  waged,  the  former  court  shall  have 
its  record  (i.e.  its  proceedings  therein,  duly  reported,  shall  be 

'  Brunner,  193.  =  lb.  194  ;  Somma,  part  2,  c.  50,  §  4. 

3  Brunner,  194.     As  to  the  number  of  witnesses  required  on  the  Continent, 
see  ib. 

"t  Enrolment  of  judicial  proceedings,  privately  made  by  the  interested  parties, 
was  not  unknown  either  in  the  Norman  or  pre-Norman  period.  It  was,  it  seems 
a  regular  official  practice  from  the  early  years  of  the  reign  of  Henry  the  Second  ; 
but  in  the  Rolls  it  was  done  in  brief  memoranda  merely,  seldom  at  length. 
See  Appendix,  No.  56. 


320  HISTORY   OF   PROCEDURE. 

conclusive)  even  in  the  King's  Court.  The  same  was  true  of 
a  change  of  champion  in  the  local  court.  If,  after  the  suit 
had  been  transferred  into  the  King's  Court,  a  different  cham- 
pion should  be  produced  than  the  one  who  had  waged  the 
duel,  and  a  dispute  arose  upon  this  point,  the  "  record  "  of  the 
inferior  court  should  "by  a  law  of  the  realm"  be  conclusive 
upon  the  subject.  Glanvill  further  says  with  respect  to  the 
record  of  an  inferior  court,  that  anyone  might  declare  that  he 
had  said  more  than  was  contained  in  the  record  ;  and  the  fact 
that  he  did  so  say  in  the  court,  he  might  prove,  as  in  earlier 
timeSji  against  the  whole  court  by  the  oaths  of  two  or  more 
lawful  men,  according  to  the  varying  custom  of  the  courts. 
No  court,  he  said,  was  bound  to  prove  or  defend  its  record  by 
the  duel,  though  it  was  otherwise  of  its  (medial)  judgment,-  the 
reason  of  which  distinction  is  clear.  The  proceedings  had  in 
court  were  not  the  acts  of  the  judges,  nor  was  the  record  the 
act  of  all,  in  ordinary  cases,  while  the  judgment  as  to  the 
bringing  of  the  proofs  zuas  their  act. 

The  most  of  the  following  cases  from  the  Rotuli  Curirc 
Regis 3  will  serve  to  illustrate  the  bringing  of  the  record  of  a 
cause  from  an  inferior  to  a  superior  court,  for  the  purpose  of 
transferring  the  cause  to  the  latter  court :  It  was  commanded 
the  sheriff  to  cause  the  record  to  come  of  the  plaint  between 
Richard  de  L.  and  Robert  Ic  M.  of  a  plea  of  land  in  T.  by 
certain  knights  who  brought  that  record  before  the  justiciars 
in  liyre  from  the  court  of  the  archbishop  of  York  on  Easter. 
And  Robert  M.  then  came  and  offered  himself  (for  trial);  and 
the  said  knights  then  came  not  nor  essoined  themselves,  and 
Hugh  B.  and  one  of  the  justiciars  in  Eyre  then  came  and 
said  that  that  record  came  before  them,  and  that  it  pertained 

'  Laws  of  Wm.  I,  i.  c.  24. 

'  Glanvill,  lib.  8,  c.  g.  That  the  record  of  the  King's  Courts  was  conclusive 
in  earlier  times  after  the  Conquest,  while  tliat  of  the  others  was  not,  see  Laws 
Wm.  I.  i.  c.  24 ;  Laws  Hen.  I.  c.  31,  §  4 ;  c.  49,  §  4.  Before  the  Conquest,  it  is 
probable  that  the  same  was  entirely  true  of  the  record  of  the  County  Court. 

•3  I  Rotuli,  376,  377,  anno  1199. 


THE   TRIAL   TERM.  321 

to  nothing-  (now  material).  Judgment  that  Robert  go  without 
day. 

In  the  year  1194  the  bishop  of  Chichester  and  Robert  de 
V.^  declared  the  record  of  a  plea  of  land  in  T.,  of  which  there 
was  a  plea  between  them  in  the  King's  Court,  to  wit,  that 
Robert  gave  the  church  of  the  Trinity  to  the  bishop  of 
Chichester  for  ever  (to  be  held)  freely  and  in  peace,  and  five 
acres  of  land,  together  with  the  said  vill  of  T.^  in  frankal- 
moign, so  that  whatever  was  found  by  oath  of  twelve  knights 
of  the  vicinage  as  pertaining  to  the  church  should  remain  to 
it.  Day  was  given  for  taking  the  chirograph  in  the  octaves  of 
St.  Hilary  at  Westminster. 

Herbert  de  H.^  essoined  himself  on  the  third  day,  during 
the  day  of  a  pleading  de  malo  veniendi  against  Alice  de  F. 
of  a  plea  of  his  judgment  and  record  concerning  a  recog- 
nition summoned  between  himself  and  the  said  Alice  of  the 
advowson  of  the  church  of  D.  .  .  .  Record  by  Simeon  de 
Pateshull  that  the  assise  said  that  they  never  saw  any  parson 
presented  to  the  church  of  D.,  but  seven  parsons  held  it  in 
person  from  father  to  son  down  to  the  last  parson  who  lately 
died  ;  and  they  say  that  that  church  was  founded  in  the  fee 
which  Alice  holds  of  the  said  Herbert  in  the  vill  of  D.,  and 
that  he  has  nothing  in  demesne  around  that  church.  It  was 
considered  that  Alice  hold  in  peace  and  that  the  bishop  receive 
the  parson  presented  by  her. 

Hugh  de  V.3  complains  that  Amanda  of  S.  has  wrongfully 
taken  possession  of  sixty  acres  in  the  marsh  of  B.,  on  account 
of  a  duel  waged  between  them  in  the  court  of  the  archbishop 
of  York,  and  he  demands  that  view  be  had  whether  the  duel 
related  to  that  land.  It  was  considered  that  the  sherift'  cause 
such  view  to  be  had  of  that  land  by  the  same  knights  by 
whom  the  first  view  was  had  whether  the  duel  (related  to  it), 
and  cause  record  of  that  view  to  come  by  four  knights  to 

'  I  Rotuli,  12.  =  lb.  37,  muw  11 94. 

^  11).  44,  same  year. 

Y 


322  HISTORY   OF   PROCEDURE. 

Westminster  in  the  octaves  of  St.  Hilary.  Hugh  de  V.  puts 
in  his  place  Hugh  de  M. 

Cecilia  de  F. '  owes  the  king  two  marks  for  having  record  of 
the  complaint  as  it  was  tried  in  the  King's  Court  between  her 
and  Geoffrey  R.,  who  recovered  ....  for  a  villein,  and  that  she 
might  have  the  complaint  in  the  King's  Court  at  Westminster, 
which  is  between  them  in  the  County  Court.  Ceeilia  has  a 
writ  for  summoning  that  complaint  to  Westminster  on  the  day 
of  St.  Hilary  in  fifteen  days. 

The  next  mode  of  trial  to  be  noticed  was  the  ordeal, 
commonly  called  judiciuvi  Dei,  sometimes  simply  judicium. 
It  was,  like  the  duel,  the  final  test,  from  which  there  was 
no  appeal.  It  was  a  solemn  invocation  to  Heaven  to  de- 
cide the  matter  in  dispute ;  and  the  result  of  the  test  was 
regarded  by  the  credulous  masses  as  effected  by  the  direct 
interposition  of  the  Almighty.  But  it  was  only  when  the 
party  had  no  charters,  and  could  furnish  neither  witnesses 
nor  compurgators,  that  he  resorted  to  the  ordeal  ;2  except 
in  cases  provided  for  by  special  legislation,  as  by  the  Assises 
of  Clarendon  and  Northampton.  It  was  applicable  to  women 
equally  with  men  ;3  and  it  was  the  legal  mode  of  exculpa- 
tion of  a  man  accused  by  a  woman  of  the  murder  of  her 
husband. 4 

The  ordeal  was  more  extensively  employed  in  the  pro- 
cedure of  the  early  Norman  period  than  in  the  later.  It  was 
the  typical  mode  of  trial  among  the  English,  contrasting 
English  procedure  with  the  procedure  of  their  Norman  con- 
querors. With  them  it  was,  until  the  Conquest,  the  only 
judicium  Dei,  so  far  as  existing  monuments  bear  witness.  It 
was  used  frequently  in  civil  as  well  as  in  criminal  cases  before 
and  for  a  considerable  time  after  the  Conquest.  Even  Nor- 
mans, who  affected  to  despise  the  peculiar  institutions  of  the 
English,  sometimes  resorted  to  the  ordeal      In  the  time  of 

'   I  Rotuli,  92,  anno  1194.  '-'  See  e.g.  Laws  Hen.  I.  c.  65,  g§  2,  5. 

^  Laws  Edw,  Conf.  c.  19.  ■*  Glanvill,  lib.  14,  c.  3,  §  4. 


THE   TRIAL   TERM.  323 

the  Conqueror  his  Norman  bishop  Remigius  purged  himself 
of  a  charge  of  treason  by  the  ordeal  of  fire,  sustained  by  one 
of  the  household  of  the  accused. ^ 

Of  the  use  of  the  ordeal  in  civil  cases  during  the  latter 
part  of  the  eleventh  century,  Domesday  bears  ample  evidence. 
It  is  offered  in  three  cases  of  lands  of  carl  Ralph  ;2  in  two 
cases  of  lands  of  earl  Alan  ;3  in  a  case  relating  to  lands  at 
Greston  ;'^  in  a  case  of  lands  of  William  of  VVarenne  ;^  in  the 
case  of  a  freeman  ;6  and  in  other  cases. 

The  ordeal  may  possibly  have  continued  to  be  a  legal 
mode  of  trial  for  civil  cases  in  the  twelfth  century  so  far  as 
anything  directly  to  the  contrary  appears ;  but  the  encroach- 
ment of  the  duel,  of  compurgation,  and  of  the  inquisition 
was  constantly  narrowing  its  application  to  such  cases,  until 
probably  long  before  the  end  of  that  century,  probably,  indeed, 
before  the  middle  of  it,  it  had  become  practically  obsolete  in 
civil  litigation.  Its  use  appears  at  the  same  time  to  have 
become  somewhat  narrowed  in  criminal  procedure.  In  the 
latter  half  of  the  twelfth  century,  and  probably  earlier,  the 
duel  had  come  to  be  the  recognised  mode  of  trial  in  appeals  of 
treason,''  if  not  in  appeals  of  crime  generally ;  though  in  the 
case  of  presentments,  where  compurgation  had  probably  been 
the  common  mode  of  trial,  the  Assises  of  Clarendon  and 
Northampton  had  provided  for  trial  by  ordeal. ^ 

This  mode  of  trial  finally  received  a  fatal  blow  from  the 
well-know^n  decree  of  the  Lateran  Council  of  the  year  12 15,  at 
which  it  was  ordered  that  the  ordeal  should  be  discontinued 
throughout  Christendom.  The  effect  of  this  decree,  however, 
was  not  an  immediate  abrogation  of  ordeals  in  England.  The 
ancient  procedure  continues  to  be  mentioned  as  prevailing  for 
some  time  after  the  year  12 15.  The  article  of  Magna  Charta 
of  John,  "  nullus  ballivus  ponat  de  cetero  aliquem  ad  legem 

'  Placita  Ang.-Norm.  30.  -  lb.  40,  41.  ^  ib.  41,  42. 

4  Ib.  41.  5  lb.  42.  ''  Ib.  43. 

'  Glanvill,  lib.  14,  c.  i,  §  5.  '^  See  also  Glanvill,  lib.  14,  c.  i,  §  2. 

V    2 


324  HISTORY   OF   PROCEDURE. 

simplici  loqucla  sua,  sine  tcstibus  fidelibus  ad  hoc  inductis"  is 
carried  into  the  charter  of  PIcnry  the  Third,  autw  1224  ;  where, 
however,  the  term  "  lex  manifcsta  "  has  in  the  English  trans- 
lation been  misunderstood  as  "  wager  of  law,"  instead  of  the 
ordeal.  I 

It  should  be  observed  that  the  ordeal  had  answered  the 
place  of  trial  by  a  petit  jury  in  modern  times  ;  being  trial  upon 
a  traverse  of  the  accusation  of  the  public  voice,  or  of  the 
finding  of  the  jury  of  presentment  or  grand  jury  of  the  assises 
of  Clarendon  and  Northampton.  By  these  statutes,  and  by 
the  ancient  law  of  England  as  well,  accused  persons,  against 
whom  a  presumption  of  guilt  had  been  raised  by  a  presentment 
or  by  an  accusation  of  the  public  voice,  had  the  constitutional 
right  of  a  further  trial  ;  a  traverse  of  the  presumption.  But 
when  at  length  the  ordeal  came  to  be  considered  as  abolished 
(there  was  no  authoritative  legislation  in  England  abolishing 
it,  so  far  as  is  known),  the  judges  were  in  straits  to  know  what 
should  be  done  with  the  prisoner.  He  had  had  the  consti- 
tutional right  to  be  tried  by  the  ordeal ;  and  could  he  now  be 
compelled  to  submit  to  some  other  mode  of  trial .''  If  he  could 
not  be  directly  compelled,  as  clearly  he  ought  not  to  be,  in 
the  absence  of  authoritative  legislation,  must  he  on  refusal  be 
pronounced  guilty,  as  would  have  been  the  result  of  his  refusal 
of  the  ordeal  .-' 

The  answer  to  these  questions  explains  the  introduction  of 
the  proceeding  \^\\o\\w3<.s  peine  forte  ct  dure,- \v\\\z\\  probably 
dates  from  the  thirteenth  century.  The  practice  was  occa- 
sionally observed,  it  seems,  before  the  Lateran  Council  of 
12 1 5,  of  traversing  the  presentment  by  another  jury  in  the 
general  manner  of  modern  times.3  This  was  probably  done 
at  the  request  of  the  prisoner,  perhaps  under  the  king's  writ. 

'   I  Stat,  at  Large,  9  Hen.  III.  c.  28. 

-  The  history  of  this  measure  of  coercion  was  first  adequately  portrayed  by  the 
late  Sir  Francis  Palgrave  in  his  great  work  on  the  Rise  and  Progress  of  the 
English  Commonwealth.     See  vol.  i.  pp.  268-270;  vol.  ii.  pp.  1S9-191. 

3  See  I  Stubbs,  Const.  Hist.  619. 


THE   TRIAL   TERM. 


325 


lie  clearly  could  not  have  been  compelled,  except  by  arbitrary- 
power,  to  submit  himself  to  a  traverse  jury  :  there  was  no  law 
requiring  it.  The  same  mode  of  trial  now  suggested  itself  to 
the  judges,  after  the  disuse  of  the  ordeal ;  but  how  should  trial 
by  jury  be  enforced,  when  the  prisoner  had  a  right  of  election  ? 
The  answer  was,  he  must  be  put  to  privation  and  suffering,  if 
recusant,  until  willing  to  put  himself  upon  the  verdict  of  a 
trial  jury. 

There  were  four  forms  of  ordeal,  to  wit,  by  cold  water^  by 
hot  water,  by  hot  iron,  and  by  the  morsel,  or  "  corsneed." 
The  first  two  were  in  the  time  of  Glanvill  for  the  lower  and 
partly  unfree  classes,  the  "  rustics  " ;  the  third  was  for  the  lay 
freeman  ;i  while  the  last,  as  we  have  seen,  was  for  the  clergy. 
The  accused,  however,  appears  to  have  had  an  election  at 
one  time  between  the  modes  by  fire  and  by  water.^  Whether 
this  was  true  in  the  twelfth  century  is  doubtful. 

Each   was   undergone   after   the  most    solemn    religious 
ceremonial.     In  the  case  of  the  cold-water  ordeal,  a  fast  of 
three  days'  duration  was  first  submitted  to  in  the  presence  of 
a  priest;  then  the  accused  was  brought  into  the  church,  where 
mass   was    chanted,   followed    by   the    communion.      Before 
communion,  however,  the  accused  was  adjured  by  the  Father, 
Son,  and  Holy  Ghost,  by  the  Christian  religion  which  he  jjro- 
fessed,  by  the  only-begotten  Son,  by  the   Holy  Trinity,  by 
the  Holy  Gospels,  and  by  the  holy  relics,  not  to  partake  of 
the  communion  if  he  was   guilty.     Prayers,  reading   of  the  ' 
Scriptures,  intercessions  and  benedictions  follow.    Communion 
having  been  partaken,  adjnraiio  agues  is  made  by  the  priest ; 
in  which  the  water  is  asked  to  cast  forth  the  accused  If  guilty, 
and  to  receive  him  Into  its  depths   If  Innocent.     After  these 
ceremonies  the  accused  is  stripped,  kisses  the  book  and  the 
cross,  is  sprinkled  with  holy  water,  and   then  cast  Into   the 
depths.     If  he  sank,  he  was  adjudged  not  guilty  ;  if  he  swam, 
he  was  pronounced  guilty. 

'  Glanvill,  lib,  14,  c,  I.  "  Sclimid,  Gesetzc,  Aiihang,  13. 


326  HISTORY   OF   PROCEDURE. 

Similar  religious  ceremonies  were  performed  in  the  other 
forms  of  ordeal.  If  the  accuser  elected  for  the  accused  the 
trial  by  hot  water,  the  water  was  placed  in  a  vessel  and 
heated  to  the  highest  degree.  Then,  if  the  party  were  accused 
of  an  inferior  crime,  he  plunged  his  arm  into  the  water  as  far 
as  the  wrist,  and  brought  forth  a  stone  suspended  by  a  cord  ; 
if  he  were  accused  of  a  great  crime,  the  stone  was  suspended 
deeper,  so  as  to  require  him  to  plunge  his  arm  into  the 
water  as  far  as  his  elbow.  The  hand  of  the  accused  was  then 
bandaged,  and  at  the  end  of  three  days  the  bandage  was 
removed.  If  it  now  appeared  that  the  wound  had  healed,  the 
accused  was  deemed  innocent ;  but  if  it  had  festered,  he  was 
held  guilty. 

If  trial  by  hot  iron  was  elected,  a  piece  of  iron  weighing 
either  one  or  three  pounds,  according  to  the  nature  of  the 
crime  charged,  was  heated  under  the  direction  of  men 
standing  by,  whose  duty  it  was  to  see  that  a  proper  heat  was 
obtained  and  kept  until  the  time  for  the  test  had  nearly  arrived. 
During  the  final  ceremonies  the  fire  was  left,  and  the  iron 
allowed  to  remain  in  the  embers.  It  was  then  raised,  and, 
with  an  invocation  to  the  Deity,  given  into  the  naked  hand  of 
the  accused,  who  carried  it  the  distance  of  nine  feet,  when  it 
was  dropped,  and  the  hand  bandaged  as  in  the  case  of  the 
hot-water  ordeal,  to  abide  the  same  test.i 

The  ordeal  of  the  morsel,  accompanied  by  similar  cere- 
monials, was  undergone  by  the  accused  undertaking  to 
swallow  a  piece  of  barley  bread,  or  a  piece  of  cheese,  of  the 
weight  of  an  ounce  ;  in  which,  if  he  succeeded  without  serious 
difficulty,  he  was  deemed  innocent,  but  if  he  choked  and  grew 
black  in  the  face,  he  was  adjudged  guilty.^ 

The  duel  became  a  feature  of  judicial  procedure  in 
England,  if  the  absence  of  mention  of  it  previously  is  con- 

'  Beames,  Glanvill,  pp.  351,  352, 

*  See  Schmid,  Gesetzc,  Anliang,  17,  for  tlie  ceremonials  in  all  of  these  forms 
of  the  ordeal. 


THE   TRIAL   TERM.  327 

elusive,  only  upon  the  advent  of  the  Normans.  This  mode 
of  trial,  however,  was  as  common  in  Normandy  before  the 
Conquest  as  was  the  ordeal  in  England  ;  and  as  early  as  the 
taking-  of  the  Great  Survey,  about  twenty  years  after  the 
overthrow  of  the  English  at  Senlac,  the  duel  appears  to  have 
become  almost  as  common  in  England  as  the  ordeal.  So 
early  probably  as  the  year  1077,  the  record  of  the  case  of 
Bishop  Wulfstan  v.  Abbot  Walter  i  informs  us  that  the  men 
of  the  Church  of  St.  Mary  and  of  the  bishop  were  ready  to 
prove  by  oath  and  by  battle  the  case  of  the  plaintiff ;  and  this,  it 
should  be  noticed,  is  at  the  instance  of  an  Englishman,  which 
tends  somewhat  to  show  that  the  Norman  innovation  was 
already  coming  into  favour  in  the  land  of  the  Anglo-Saxons. 
From  the  time  of  Domesday  Book  forward  the  duel  begins 
to  encroach  upon  the  domain  of  the  ordeal,  until  at  length  it 
succeeds  in  crowding  it  out  of  civil  procedure  altogether.  And 
while  this  was  going  on,  the  duel  was  also  forcing  its  way 
between  the  ordeal  and  compurgation,  drawing  from  each,  and 
becoming  established  in  criminal  procedure,  as  we  have  seen. 

All  traversed  appeals^  cither  were,  or  in  the  election  of  the 
appellant  made  known  in  the  formula  of  his  appeal,  might  be 
followed  by  the  duel,  whether  in  criminal  or  in  civil  cases. 
When  no  election  was  made  by  the  appellant,  the  court  might, 
it  seems,  upon  demand  of  the  appellee,  order  wager  of  battle. 
The  duel  might  also  be  ordered  in  other  cases  than  appeals, 
upon  the  state  of  the  pleadings.  This  was  true  whenever  a 
question  of  right  turned  upon  the  disputed  allegations  of  the 
parties  ;  and  it  was  also  true  when  the  genuineness  of  a  seal 
was  in  question  and  the  court  had  no  adequate  means  of 
deciding. 

Many  examples  of  the  use  of  the  duel  in  England  during 
the  Norman  period  might  be  presented; 3    but  there  is  no 

'  Placita  Ang.-Norm.  16. 

-  We  have  already  seen  in  what  cases  appeals  were  usual.     Ante,  pp.  295-297. 

3  Placita  Ang.-Norm.  41,  42,  62,  69,  141,  142,  1S2,  210,  305. 


328  HISTORY   OF   PROCEDURE. 

complete  record  before  the  thirteenth  century  of  the  procedure. 
Bracton  sets  out  the  whole  proceeding  in  several  cases  ;  and 
there  is  no  reason  to  suppose  that  there  had  been  any  material 
change  since  the  twelfth  century. 

The  proceedings  in  the  case  of  an  approver  {prohator) — 
one  who  had  turned  State's  evidence  against  an  accomplice  in 
crime,  and  appealed  him  thereof — may  safely  be  quoted  from 
Bracton.  That  appeals  of  this  kind  prevailed  as  early  as  the 
year  1167,  the  Rolls  of  the  Pipe  afford  direct  evidence  ;  and 
the  use  of  technical  language  indicates  that  they  were  even 
then  nothing  new.  The  roll  for  the  fourteenth  year  of  Henry 
the  Second  contains  the  following  entry :  "  Reimundus  de 
Baldac  debet  xx.  marcas  pro  appellatione  Walteri  probatoris 
de  falsonaria."^ 

The  record  given  by  Bracton  (the  whole  of  which,  including 
the  first-term  pleadings,  should  be  read  together)  is  to  the 
following  effect :  The  king,  he  says,  has  the  power  to  remit 
the  punishment  of  crime  to  those  who  will  discover  their 
accomplices  and  agree  to  free  the  country  of  them  ;  or  he  may 
grant  the  right  to  his  justiciars  to  remit  the  punishment.  In 
the  latter  case  he  issues  a  writ  to  them  of  this  tenor :  Know 
that  we  give  you  power  to  grant  life  and  limb  to  such  an  one 
who  has  become  an  approver  before  us,  and  acknowledged  a 
robbery  (or  some  other  felony),  upon  the  condition,  that  he 
wage  the  duel  and  secure  the  conviction  of  five  (or  such 
another  number),  etc. 

The  sheriff  then  attaches  the  bodies  of  the  parties  to  be 
appealed,  and  the  king  thereupon  issues  his  writ  commanding 
the  sheriff  without  delay  to  take  "A.,  whom  B.  (who  confesses 
that  he  is  a  robber),  in  our  court,  before  our  justices,  appeals 
of  complicity  in  robbery,  and  bring  him  speedily  before  the 
said  justices  at  such  a  place  to  answer  the  said  B.  of  complicity 
in  robbery,  whereof  B.  appeals  him. "2 

'  riacita  Ang. -Norm.  269. 

"  If  the  trial  was  to  be  per  fatriavi,  the  writ  required  the  sheriff  to  bring  a 
secta  of  the  vicinage  for  making  an  inquisition. — Bracton,  152  b. 


THE    TRIAL   TERM.  329 

The  parties  having  been  brought  into  court,  the  appeal  is 
made  in  the  following  form  :  "A.,  of  N.,  acknowledging  himself 
to  be  a  robber,  appeals  B.  of  complicity  in  theft  and  robbery, 
that  they  together  stole  such  a  thing  at  such  a  place,  and  so 
that  the  said  B.  had  for  his  part  so  much,  and  this  he  offers  to 
prove  against  him  by  his  body,  as  the  court  may  direct." 

It  was  necessary,  Bracton  adds,  for  the  approver  to  express 
a  thing  certain,  and  all  the  circumstances  without  variation  or 
change  of  words,  and  that  he  should  recognise  the  party 
appealed  when  brought  into  court  before  him. 

The  defendant's  plea  follows  in  the  same  language  as  that 
used  in  the  time  of  Henry  the  Second.  It  was  as  follows  : 
"And  B.  comes  and  defends  the  complicity  and  robbery  and 
every  felony,  and  whatever  is  imputed  to  him  from  word  to 
word,  and  according  as  it  is  imputed  to  him  from  word  to 
word." 

Pledges  are  then  given,  by  the  appellor  for  the  prosecution 
and  by  the  defendant  for  defence.  If  the  latter,  however,  can- 
not give  security,  he  is  sent  to  jail  again.  A  day  is  named  for 
the  trial  of  arms  ;  which  having  arrived,  the  parties  appear  in 
court  armed,  and  the  defendant,  coming  forward  first,  takes 
the  following  oath  :  "  Hear  this,  }-ou  man  whom  I  hold  by  the 
hand,  who  call  }-ou  yourself  A.  by  your  baptismal  name,  that 
I  am  not  a  robber,  nor  your  accomplice  in  robbery,  nor  did  I 
with  }-ou  steal  such  a  thing,  in  such  a  place,  nor  did  we  do  any 
such  thing,  as  such  robber}',  nor  did  I  have  for  my  part  so 
much  ;  so  help  me  God." 

Then  the  appellor  swore  in  words  of  affirmation  as  follows  : 
"  Hear  this,  you  man  whom  I  hold  by  the  hand,  who  call 
yourself  B.  by  your  baptismal  name,  that  you  are  perjured,  and 
you  are  so  perjured  because  you  are  a  robber,  and  were 
accomplice  with  me  in  theft,  because  in  such  a  place  we 
together  stole  such  a  thing,  of  which  you  had  for  your  part  so 
much  ;  so  help  me  God."^ 

'  Bracton,    152,    153.      For  the  rest  of  the  record,   Bracton  refers  back  to 
p.  142  b,  which  is  given  in  the  text  supra. 


330  HISTORY   OF   PROCEDURE. 

The  oaths  having  thus  been  taken,  the  defendant  is  im- 
mediately sent  out  with  two  knights  or  other  legal  men, 
according  to  his  rank,  and  is  by  them  conducted  to  the  field 
in  which  the  contest  is  to  take  place  ;  whither  the  appellor  is  in 
the  same  manner  conducted.  Each  is  so  guarded  that  no  one 
after  the  oaths  can  speak  with  them  before  the  duel  is  begun  ; 
but  when  they  reach  the  field  they  must  swear  again  before 
the  justices  in  the  following  formula  :  "  Hear  this,  ye  justices, 
that  I  have  not  eaten  or  drunk,  nor  has  anyone  done  anything 
by  or  for  me,  whereby  the  law  of  God  might  be  abased  or  the 
law  of  the  devil  exalted  ;  so  help  me  God." 

Then  proclamation  was  made  by  the  king's  officer,  and 
silence  commanded  in  these  words  :  "  The  king  and  his  justices 
command  that  no  one  be  so  bold,  Avhatever  he  may  hear  or 
see,  as  to  move  or  cry  aloud,  and  if  anyone  disobey,  let  him  be 
taken  and  imprisoned  for  a  year  and  a  day,  according  to  the 
king's  pleasure." 

They  now  proceed  to  the  combat  on  foot,  with  staffs, 
and  if  the  appellor  is  conquered,  or  if  the  defendant  ^  can 
defend  himself  through  the  whole  day,  until  the  stars  appear, 
then  the  defendant  might  go  quit  of  the  appeal ;  and  with  him 
all  others  appealed  of  complicity  in  the  same  crime.  If,  how- 
ever, the  defendant  is  conquered,  the  appellor  must  then  wage 
the  duel  as  before  with  the  others,  if  any,  similarly  accused. 
If  the  appellor  w^ere  overcome,  the  party  appealed,  with  the 
others  probably  who  had  not  waged  battle,  was  dismissed  on 
giving  pledges,  unless  the  judges  thought  there  Avas  ground 
for  detaining  him  in  prison.  If  he  could  not  give  pledges,  he 
was  to  abjure  the  kingdom  or  be  sent  to  jail  for  life.^ 

'  The  old  text  has  "appcUans";  but  this  is  clearly  a  mistake  for  "appellatus." 
■'  Compare  the  trial  for  treason  of  Ganelon,  Chanson  de  Roland,  cc.  295-318, 
for  a  vivid  account  of  the  duel,  in  the  language,  it  seems,  of  the  latter  part  of  the 
twelfth  century.  The  story  is  of  the  treason  to  Roland  and  Oliver  in  Spain, 
of  which  Ganelon  is  represented  as  appealed  by  the  Emperor  Charlemagne. 
See  also,  as  to  the  procedure  of  the  duel  in  detail,  I  Assises  de  Jerusalem, 
pp.  172,  173  (Beugnot).  Both  parties  fought  by  champion  on  horseback,  on  the 
Continent. — lb. 


THE   TRIAL   TERM.  33i 

The  great  feature  of  procedure  in  the  Norman  period  was 
the  inquisition  ;  the  practice  concerning  which  has  been  con- 
sidered in  the  chapter  on  the  issue  term.  Something  similar 
to  this  may  have  prevailed  before  the  Conquest  and  after- 
wards, possibly,  in  the  Danelag,  in  the  Norse  "buakvidr" 
and  the  "  tolftarkvidr,"  the  verdict  of  neighbours  and  the 
verdict  of  twelve,  of  which  mention  has  already  been  made. 
But  each  of  these  differed  essentially  from  the  inquisition  ; 
and  neither  has  left  any  trace  of  its  existence  in  England, 
unless  the  passage  heretofore  quoted  from  the  Laws  of  the 
Confessor  be  thought  to  suggest  the  Norse  inquest. ^ 

The  buakvidr  has  been  noticed  in  the  case  of  Mord  v. 
Flosi.  It  was  an  inquest  of  either  five  or  nine  neighbours, 
summoned  by  the  plaintiff,  of  those  who  lived  nearest  the 
place  where  the  act  in  question  was  committed.  In  cases  of 
manslaughter  they  proceeded  to  view  the  body  of  the  slain  ; 
and  as  the  act  of  slaying  in  such  cases  must  have  been 
publicly  avowed  (otherwise  it  was  murder),  they  became 
witnesses  to  the  fact  in  a  proper  sense. 

This  was  the  most  common  form  of  trial  in  Iceland.  The 
references  to  it  in  the  Gragas  and  in  the  sagas  are  frequent  ;- 
and  its  general  resemblance  to  the  inquisition  by  recognitors 
is  noticeable.  Still  it  differed  from  that  mode  of  trial  in  several 
essential  particulars,  (i)  It  appears  not  to  have  been  applic- 
able to  the  trial  of  so  wide  a  class  of  actions  as  was  the  in- 
quisition ;  it  was  for  the  trial  of  questions  of  fact  only,  upon 
the  testimony  of  neighbours  nearest  the  affair  in  question.-^ 

'  An/c',  p.  309.  -  Vigfusson,  Cleasby,  Diet.  Kvidr. 

3  The  Latin  version  of  the  Gragas  says  :  "  De  quavis  re  affectum  [verdict] 
l)roferre  vicini  evocati  non  obligantur.  De  causis  peregre,  vel  extra  medium 
oceani  orientem  versus,  enatis,  quamvis  hie  actis  instituatur,  discernere  non 
tenentur.  Quid  juris  hac  in  civitate  valeat,  vicinis  evocatis  definire  non  licitum 
est.  ...  Si  porro  novem  evocati  sint  vicini  ubi  quinque  tantum  adhiberentur,  vel 
quinque,  ubi  novum  adesse  deberent ;  vel  si  causae  per  dodecadis  veridicos  (sc. 
prretorianum  effatum  [priest  verdict  of  twelve  men,  tolftarkvidr] )  dirimendse  vicini 
admoventur,  evocati  judiciuni  adeuntes  testes  antestentur,  qui  probent  eos  hoc  suo 
effato  proferendo  obstare  velle,  quod  vel  novera  pro  quinque  vel  vice  versa  provocati, 
vel  causx  per  dodecadis  veridicos  dirimcndre  admoti  sint." — I  Gragas,  16S. 


332  HISTORY   OF   PROCEDURE. 

(2)  It  was  summoned  by  the  plaintiff,  and  not  by  an  officer  of 
the  hnv.  (3)  Its  chief  use  was  in  criminal  cases.  (4)  The 
number  sitting  upon  the  inquest  was  fixed  to  five  or  nine. 
(5)  The  verdict  of  the  hua  need  not  have  been  unanimous  : 
a  majority  was  sufficient. ' 

The  tolftarkvidr  or  verdict  of  twelve,  called  also  the  go- 
thakvidr  or  priest  verdict,  is  said  to  have  been  applicable  only 
to  certain  (unnamed)  cases  "defined  in  the  law;"^  but  the 
references  to  it  in  the  Gragas  and  sagas  are  numerous.  The 
inquest,  according  to  the  Gragas,  was  summoned  by  the  godi 
(priest),  he  himself  being  one  of  the  number  unless  rendered 
incompetent  by  some  special  circumstance,  such  as  con- 
sanguinity to  one  of  the  parties  litigant.^  The  function  of  the 
inquest  appears  to  have  been  to  Jicar  evidence,  like  that  of  the 
modern  English  jury ;  and  hence  it  seems  not  to  have  been 
necessary  to  summon  them  from  the  nearest  neighbourhood. 
The  majority,  in  the  time  of  the  Gragas,  governed  ;  but  when 
the  inquest  was  equally  divided,  the  side  upon  which  the 
godi  voted  prevailed.^ 

The  decision  of  a  case  under  this  mode  of  trial  was  there- 
fore virtually  in  the  hands  of  the  godi  ;^  of  which  fact  an 
illustration  is  afforded  by  the  case  of  Hallvard,  as  stated  in 
the  saga  of  Viga-Glum.  One  autumn,  says  the  saga,  Halli 
missed  some  ten  or  twelve  w^ethers  out  of  the  hill  pastures, 
and  they  could  not  be  found,  so  when  Bard  (Halli's  son)  and 
his  father  met,  Halli  asked  his  son  Avhat  he  thought  had 
become  of  the  wethers.  Bard  replied :  "  I  don't  wonder  if 
sheep  disappear  when  a  thief  lives  next  door  to  you,  ever 
since  Hallvard  came  into  the  district."  "Yes,"  says  Halli, 
"  I   should   like  you  to  set  on  foot  a  suit  against  him,  and 

'  I  Gragas,  53.  "  Si  dc  efl'ato  fcrendo  in  umim  non  consenserint,  consentien- 
tium  numerosioium  effatum  valeat." 

-  Vigf.  Cleasby,  Diet.  Kvidr.  3  Head,  Viga-Glum  Saga,  p.  iiS. 

*•  "Si  ce  effato  ijroferendo  inter  cos  non  convencrit,  eorum  prKvaleat  scntentia 
qui  plures  simul  in  unum  conspirant;  si  vero  dissentientes  rwvxi^xo  pares  sint,  ferant 
effatum  c  voluntate  prccloris." — i  Gragas,  57.  ^  Head,  p.  118. 


THE   TRIAL   TER^I.  333 

summon  him  for  theft.  I  don't  think,  if  I  make  this  charge 
against  him,  Ghim  [the  priest  of  the  district]  will  go  the  length 
of  clearing  him  by  the  oath  of  twelve  men."  "  No,"  answered 
Bard,  "  it  will  be  a  difficult  matter  for  him  to  get  the  oath  of 
twelve  men  out  of  Glum  and  Vigfuss  [Glum's  son,  Hallvard 
being  his  foster-father]  and  their  people." 

This  would  be  sufficient  to  indicate  the  main  difference 
between  the  buakvidr  and  the  tolftarkvidr  ;  but  the  saga  pro- 
ceeds :  Then  Bard  set  his  suit  on  foot,  and  when  Vigfuss 
knew  it  he  told  his  father  that  he  should  not  like  proceedings 
for  theft  to  be  commenced  against  his  foster-father,  Glum's 
answer  was:  "You  know  he  is  not  to  be  trusted,  and  it  will 
not  be  a  popular  thing  to  swear  him  guiltless."  Vigfuss  said  : 
"  Then  I  would  rather  that  we  had  to  deal  with  a  matter  of 
greater  consequence."  Glum  replied:  "It  seems  to  me  better 
to  pay  something  on  his  account,  and  let  him  change  his 
residence  and  come  hither,  than  to  risk  my  credit  for  a  man 
of  his  character." 

When  men  came  up  to  the  Thing  the  case  was  brought 
in  court,  and  Glum  had  to  swear  one  way  or  the  other  with 
his  twelve  men.  Vigfuss  became  aware  of  the  fact  that  his 
father  intended  to  find  Hallvard  guilty,  so  he  went  to  the 
court  and  said  that  he  would  take  care  that  Glum  should  pay 
dearly  for  it  if  his  foster-father  was  declared  guilty.  It 
ended  in  Glum  quashing  the  suit  by  swearing  that  Hallvard 
was  innocent." 

'  Head,  Viga-Glum  Saga,  pp.  66,  67.  The  sequel  further  shows  the  power  of 
the  godi,  and  is  told  not  without  wit.  In  the  course  of  a  winter  or  two,  says  the 
saga,  it  happened  that  Halli  lost  a  pig,  which  was  so  fat  that  it  could  hardly  get 
on  its  legs.  Bard  came  in  one  day  and  asked  if  the  pig  had  been  killed,  and 
Ilalli  said  it  had  disappeared.  Bard  replied  :  "  He  is  gone,  no  doubt,  to  look  for 
the  sheep  which  were  stolen  last  autumn."  "I  suppose,"  said  Halli,  "they 
are  both  gone  the  same  way.  Will  you  summon  Hallvard?"  "  Well,"  replied 
Bard,  "so  it  shall  be,  for  I  do  not  think  Glum  will  this  time  swear  Hallvard 
free ;  Vigfuss  was  the  cause  of  the  previous  acquittal,  and  he  is  not  now  in 
the  country."  Bard  took  up  the  case,  and  proceeded  to  serve  the  summons; 
but  when  he  met  Hallvard  he  made  short  work  of  the  suit  by  cutting  off  the 
man's  head. 


334  HISTORY   OF   PROCEDURE. 

Whatever  resemblance  may  be  discovered  between  the 
Norse  modes  of  trial  and  the  modern  English  jury,  it  is  per- 
fectly clear  that  neither  the  tolftarkvidr,  nor  thebuakvidr,  nor 
any  of  the  minor  modes  of  trial  of  the  same  nature  (of  which 
there  appear  to  have  been  two  or  three)/  bore  fruit  in  the 
modern  jury.^  That  institution  was  purely  Norman-English, 
having  come  by  direct  lineage  from  the  inquisition  procedure 
introduced  from  Normandy  by  William  the  Conqueror.  The 
development  of  the  writ  of  novel  disseisin,  heretofore  examined, 
has  shown  the  history  of  the  procedure  by  inquisition  and 
recognition  in  England  from  the  time  of  the  Conquest  until 
the  end  of  the  reign  of  Henry  the  Second,  when  the  jury  as  it 
prevailed  until  the  separation  of  witness  and  juror,  or  rather 
until  the  juror  ceased  to  be  a  witness,,  was  fully  established. 
No  other  institution  was  at  work  contesting  with  the  inquisi- 
tion the  establishment  of  the  jury.  The  recognition,  when  it 
first  presents  an  appearance  in  England,  is  what  it  was  to  the 
end,  a  body  of  impartial  men,  summoned  by  an  officer  of  the 
law,  to  speak  the  truth  concerning  the  matter  in  dispute,  of 
which  body  the  officer  was  never  a  member.  That  body  in 
the  end  was  the  modern  jury. 

The  essential  features  of  the  modern  jury  were  in  fact 
nearly  consummated  in  the  recognitions.  Compurgators  were 
party-jurors  (using  the  term  juror  in  a  broad  sense),  who 
merely  attested  the  credibility  of  their  principal.  They  were 
selected  by  the  party  himself,  either  out  of  the  whole  com- 
munity or  out  of  a  portion  named  by  the  judge,  or  they  were 
chosen  by  lot.  Their  competency  as  law-worthy  men  of  the 
community  was  the  only  matter  of  fact  they  could  be  required 
to  establish.  Party-witnesses  were  jurors  whose  oath  or 
verdict,  when  properly  given  upon  the  question  before  them, 
decided  directly  the  question  of  fact  in  issue  ;  but,  as  in  the 

'  See  Vigf.  Cleasby,  Diet.  Kvidr, 

-  It  may  be  added  that  the  coroner's  inquest,  to  which  the  Icelandic  inquests 
bear  some  resemblance,  is  totally  unconnected  with  them  in  origin. 


THE   TRIAL  TERM.  335 

case  of  compurgators,  these  were  par/j'-jurors,  that  is,  men 
selected  by  the  party  upon  whom  devolved  the  proof  required 
by  the  medial  judgment.  They  were  not  men  selected 
impartially  to  speak  the  truth. 

The  simple  inquisition  stands  between  this  mode  of  trial 
by  witnesses  and  that  species  of  the  inquisition  known  as  a 
recognition ;  not  in  strict  chronological  order,  for  all  three 
existed  side  by  side  throughout  the  Norman  period  ;  though  it 
may  be  observed  that  trial  by  party-witness  was  older  than  trial 
by  simple  inquisition,  and  that  the  latter  was  perhaps  older 
than  trial  by  recognition.  But  the  simple  inquisition  was  a 
stage  between  the  other  two  without  being  connected  with 
party-witness.  The  "  inquisitio  per  testes,"  as  this  mode  of 
trial  was  sometimes  called,  was  an  inquiry  into  the  truth  of  a 
disputed  allegation,  not  an  attempt  to  find  a  certain  number 
of  men  who  would  swear  in  a  particular  way.^  The  inquiry 
was  accordingly  instituted  by  an  impartial  person,  as  by  the 
presiding  officer  of  the  court.^ 

But  there  was  no  jury  here  :  there  was  no  defined  body  of 
triers  between  the  court  and  the  parties.  There  were  more  or 
less  witnesses  only,  whose  function  commonly  was  to  find 
some  incidental  fact. 

The  recognition  consisted  usually  of  a  fixed  number  of 
men  ;  a  body  of  jurors  from  the  outset  standing  between  the 
parties  and  the  judges,  and  sworn  to  report  the  truth  to  the 
court.  The  sheriff  sought  out  the  required  number  of  men, 
making  diligent  inquiry  concerning  those  who  were  sufficiently 
acquainted  with  the  facts  by  personal  knowledge  or  by  reliable 
report  ("de  visu  et  auditu,"  in  the  language  of  the  time). 
This  jury  could  inform  itself  by  making  inquiry;  that  is, 
witnesses  could  testify  before  them  upon  their  request,  and 
help  them  to  a  conclusion,  or  bring  them  to  a  division.  The 
body,  probably  either  as  a  whole  or  individually,  could  take 
any  means  to  ascertain  the  truth,  whether  it  were  to  confirm 
'  See  Bruimer,  Schwurg.  85.  2  j|j_  g_j_ 


336  HISTORY   OF   PROCEDURE. 

or  to  overturn  their  own  belief  as  to  the  facts,  before  making 
their  report  to  the  court.  They  reported  upon  what  they  had 
seen  and  Jieard.  Glanvill  says  that  with  respect  to  the  know- 
ledge required  of  the  recognitors,  they  should  be  acquainted 
with  the  merits  of  the  cause,  either  from  what  they  have  per- 
sonally seen  and  heard,  or  from  the  declarations  of  their 
fathers  (as  in  the  case  of  champions),  and  from  other  sources 
equally  entitled  to  credit  as  if  falling  within  their  own  imme- 
diate knowledge.!  An  example  from  an  ecclesiastical  cause 
at  the  beginning  of  the  reign  of  Henry  the  First  (the  Case  of 
Matilda-)  has  already  been  referred  to,  where  persons  standing 
in  the  same  situation  as  recognitors  in  temporal  causes  pro- 
ceed to  inform  themselves  before  giving  answer  to  the  court 
by  making  personal  inquiry  of  people  cognisant  of  the  facts. 
A  similar  example  in  a  lay  court  may  be  found  in  the  case 
of  Monks  of  St.  Stephen  v.  The  King's  Tenants.^  It  seems 
also  probable  that  the  practice  which  is  known  to  have  pre- 
vailed in  the  thirteenth  century  of  examining  the  recognitors 
themselves  as  to  their  knowledge  of  the  facts  (the  judges 
propounding  the  questions)  prevailed  also  in  the  twelfth  cen- 
tury ;  the  same  motive  existing  then  as  afterwards,  a  desire  to 
ascertain  whether  the  finding  was  based  on  reliable  grounds. 

The  difference  between  this  and  the  jury  of  the  present 
day  is  but  as  a  step  ;  though  in  fact  several  steps,  differing 
from  what  might  perhaps  be  expected,  were  taken  before  the 
modern  jury  was  reached.  All  that  was  necessary  was  that  the 
idea  should  become  established  that  the  jurors  should  be  men 
wholly  unacquainted  with  the  facts  (it  came  to  be  thought  in- 
consistent that  a  man  should  at  the  same  time  be  juror  and 
witness)  ;  when  of  course  they  would  need  to  be  informed  by 
the  testimony  of  persons  who  did  know  the  facts.  This  point 
finally  reached  brought  to  an  end  the  ancient  practice  of  the 
examination  of  the  jurors   by  the  court,  except  as  to  their 

'  Glanvill,  lib.  2,  c.  17,  §  4.  =  Placita  Aug. -Norm.  79;  ante,  p.  (>i. 

"^  11).  119,  120. 


THE   TRIAL   TERM.  337 

competency.  But  the  modern  practice  of  bringing  witnesses 
before  the  jury  has  another  and  different  origin  from  the 
act  of  the  recognitors  in  informing  themselves,  although  it 
amounted  in  the  end  to  much  the  same  thing.  That  subject 
belongs  to  the  later  history  of  the  jury.' 

Forms  of  the  communlty-jarata,  so  often  mentioned  in  the 
law-books  of  the  thirteenth  century,  had  clearly  been  in  use  in 
England  ever  since  the  Conquest ;  such  for  instance  as  the  simple 
judicial  inquisition  ordered  for  the  trial  of  a  cause  by  the  king's 
writ.-  But  the  more  interesting  form  of  the  jiira^a,  in  respect 
of  judicial  procedure,  was  its  use  in  the  midst  of  a  cause, 
generally  in  an  assise,  by  which  the  court,  through  orders 
emanating  from  itself  and  without  the  king's  writ,  informed 
itself  upon  questions  incidentally  raised  in  the  course  of  the 
particular  trial.-'  The  proceeding  made  known  by  Bracton 
and  others,  by  which  the  recognitors  of  the  assise — an  assise 
of  novel  disseisin,  for  instance — were  converted  into  a  jurata 
("  assisa  vertitur  in  juratam  "),4  was  indeed  unknown  to  the 
Norman  period.  That  proceeding  marks  a  distinct  step  in 
advance  of  the  reforms  of  the  reign  of  Henry  the  Second.  It 
was  a  simplification  of  the  machinery  of  the  superior  courts. 
It  was  also  a  step  towards  introducing  a  jury  unacquainted 
with  the  facts  and  hence  to  be  informed  entirely  by  testimony 
brought  before  them  ;  for  as  the  recognitors  had  been  sum- 
moned for  a  special  purpose,  such,  for  instance,  as  the  deter- 
mination of  seisin  at  a  previous  time,  they  must  some-' 
times,  if  not  often,  have  been  unacquainted  with  the  facts 


'  See  Forsyth,  Hist.  Jury,  150,  where  the  subject  is  considered  at  length; 
Brunner,  Schwurg.  436. 

-  See,  for  example,  Ruaculus  de  A.  v.  Abbey  of  Abingdon,  Placita  Ang.-Norm. 
73;  Glanvill,  lib.  9,  c.  13,  §  3;  lib.  7,  c.  9,  §  7.  And  see  also  the  language 
of  the  submission  to  arbitration  of  the  differences  between  Henry  II.  of  England 
and  Louis  of  France  in  Roger  de  Hovenden,  anno  11 77;  also  the  treaty  between 
Philip  and  Henry,  ib.  anno  1180.  Further,  Placita  Ang. -Norm.  121,  139,  203, 
261, 

'  Leading  Cas.  on  Torts,  346  ;  i  Reeves,  Hist.  Eng.  Law,  352-354  (Finl.). 

■^  Bracton,  216  b. 

Z 


338  HISTORY   OF   PROCEDURE. 

necessary  to  the  determination  of  questions  which  they  had 
not  been  summoned  to  answer,  such,  for  instance,  as  the 
villenage  or  minority  of  one  of  the  parties. 

Whether  the  community -j'li rata  was  employed  in  the 
twelfth  century  in  the  course  of  a  recognition  or  of  the  Magna 
Assisa  cannot  be  certainly  determined.  The  question  could 
be  readily  answered  were  it  not  for  the  continued  use  of  the 
Anglo-Saxon  community-witness  and  similar  party-proof.^ 
This  procedure  so  nearly  resembled  the  jura  fa  that  unless  the 
facts  are  particularly  given,  it  becomes  difficult,  if  not  im- 
possible, to  determine  to  which  class  the  transaction  belonged. 
The  essential  difference  between  the  two  is  sufficiently  clear. 
The  Anglo-Saxon  proceeding  was  strictly  party-proof ;  while 
the  j'urafa  was  an  inquisition,  being  summoned  and  conducted 
by  the  judge  or  sheriff,  or  by  some  other  disinterested  person.^ 
If  the  mode  of  conducting  a  particular  proceeding  of  the  kind 
were  always  stated,  there  would  be  no  difficulty  in  determining 
of  the  existence  in  the  Norman  period  of  the  jurata  as  an 
incidental  agency  of  litigation. 

There  are,  however,  strong  a  priori  grounds  for  believing 
that  the  jurata  of  the  community  was  then  in  such  use.  It 
had  been  in  use  in  Normandy  before  the  Conquest  (as  a 
simple  inquisition,  "inquisitio  ex  jure")^  and  it  was  in  use  in 
England  in  the  thirteenth  century.  It  is  not  likely  that  it  was 
introduced  into  England  after  the  loss  of  Normandy  by  John, 
a7Uio  1204  ;  and  we  have  seen  the  use  of  the  term  in  England, 
apparently  in  a  technical  sense,  so  early  as  the  year  1 1/2.4 

Glanvill's  language  is  not  decisive  ;  but  the  natural  inter- 

'  An  example  of  party-proof  to  stay  an  assise  temp,  king  John  will  be  found  in 
Abbreviatio  Placitorum,  p.  81,  col.  2.  "  Et  N.  .  .  .  elicit  quod  assisa  non  debet 
inde  fieri  quia  ipse  M.  vilianus  est  et  inde  producit  suflicientem  sectani,  sc.  A.  R. 
patronum  suum  ct  R.  filius  R,  et  tres  fratres  suos  cognates  ipsius  M.  qui  se  fatentur 
esse  villanos  ipsius  N." 

-  On  the  Continent  ihe  Jura/a  was  called  an  "inquisitio  ex  jure,"  an  inquisition 
of  right,  probably  because  it  was  had  without  tlie  king's  writ,  whenever  in  th;  course 
of  a  trial  it  became  necessary  or  proper. 

^  Brunner,  Schwurg.  84,  381,  382.  ■*  Au/e,  p.  125, 


THE    TRIAL   TERM.  339 

pretation  of  it  makes  it  point  to  the  use  of  the  Jura/a.     In  a 
Avrit  of  right  the  tenant  might  put  himself  upon  the  Grand  Assise 
to  avoid  the  duel     But  to  the  rendering  of  any  verdict  by  the 
assise  the  demandant  was  permitted  to  object  that  the  parties 
were  sprung  from  the  same  stock  from  whence  the  inheritance 
in  question    came.       If  this    were    admitted    by  the  tenant, 
the  assise  was  terminated,  "  because  it  shall  then  be  lawfully 
inquired  ["  quia  tunc  legitime  inquiretur  "]  which  of  the  parties 
is  the  nearer  to  the  original  stock,  and  as  such  the  heir  more 
justly  entitled."!     If,  however,  the  tenant  denied  the  alleged 
relationship,  then  recourse  was  to  be  had  to  the  kindred  of 
the  parties,  who  for  this  purpose  were  now  to  be  summoned 
into  court,  that  the  question  of  relationship  might  be  inquired 
of  ("inquiratur")  through  them.     If  the  relations  disagreed, 
or   if  their  unanimous  answer  was  stoutly  denied,  the  case 
was  to  stand  upon  the  verdict  of  the  vicinage   ("  veredicto 
vicineti ").     Inquiry  now  being   made  ("facta  autem   inqui- 
sitio7ie''),  the  result  was  to  stand  according  to  the  answer.^ 
The  use,  by  a  lawyer,  of  such  technical  terms  would,  in  con- 
nection with  the  considerations  already  presented,  be  nearly 
if  not  quite  conclusive  ;   but  in  another  place,  where  the  sub- 
ject treated  of  is  the  analogous  one  of  proof  as  to  villenage, 
Glanvill's   language    as    to   the    latter   question    shows    that 
party-proof  (community-witness)  was  used.     A  writ  having 
been  obtained  by  a  party  claiming  his  freedom  against  one 
who  was  holding  him   to  villenage,   Glanvill  says   that   the 
question  of  freedom  should  be  determined  in  this  manner : 
the  party  who  claims  his  liberty  shall  produce  a  number  of 
his  nearest  relatives ;  and  if  their  freedom  is  recognised  and 
proved  in  court,  the  plaintiff  shall  be  declared  free.^     This, 
however,  is  followed  by  the  statement  that  if  the  free  con- 
dition of  the  secta  were  denied,  then  recourse  was  to  be  had 
to  the  vicinage,  whose  verdict  ("  veredictum  ")  should  decide 
the  question,  and  if  the  defendant  slioiild  brtJig  forivard  -persons 

'  Glanvill,  lib.  2,  c.  6,  §  3.  ■  lb.  S;?  4,  5.  •  Tb.  lib.  5,  c.  4,  §  i. 

Z    2 


340  HISTORY   OF   PROCEDURE. 

to  prove  that  the  plaintifif's  sccta  were  his  (the  defendant's) 
villeins-born,  and  they  were  sprung  from  the  same  stock  as 
the  plaintiff,  then,  says  Glanvill,  if  both  were  found  ("  re- 
cognoscantur")  to  be  of  common  kindred,  "let  it  be  inquired 
by  the  vicinage  ('  disquiretur  per  visinetum')  which  of  them 
are  the  nearest  to  him,"  with  judgment  accordingly. i  And 
in  the  corresponding  passage  in  the  Regiam  Majestatem, 
so  far  as  that  fact  is  entitled  to  consideration,  this  passage 
concerning  the  inquiry  by  the  vicinage  reads  :  "  It  shall  be  tried 
by  an  assise."  2  On  the  whole  the  conclusion  fairly  is  that 
by  the  side  of  the  tenacious  Anglo-Saxon  proceeding  by 
party-witness  of  the  community,  the  Norman  impartial y^r-^/^ 
of  the  community  was  in  use,  though  certainly  not  in  the 
fixed  and  familiar  form  of  Bracton,^  It  may  be  added  that 
the  sccta  of  a  party  was  probably  subjected  to  examination 
by  the  judges  as  to  the  facts  in  question. 

'  Glanvill,  lib.  5,  c.  4,  §  2.  ^  Reginm  Majestatem,  lib.  2,  c.  ir. 

3  This  is  also  the  view  of  Reeves,  i  Hist.  Eng.  Law,  352-354.  See  Leading 
Cas.  on  Torts,  346 ;  Forsyth,  Hist.  Jury,  143  ;  Brunner,  Schwurg.  381  et  seq. 
and  Af\(i  et  seq. 


CHAPTER  X. 

THE  FINAL  JUDGMENT. 

Judgment  in  favour  of  the  defendant  in  a  civil  case  declared 
that  the  party  go  without  day  and  the  plaintiff  be  in  mercy 
pro  f also  clamorc.  In  criminal  appeals  in  the  time  of  Bracton, 
as  we  have  seen  in  the  last  chapter,  the  defendant,  though 
successful,  was  required  to  find  pledges,  unless  there  was 
ground  for  detaining  him  ;  otherwise  he  was  to  abjure  the 
kingdom  or  be  sent  to  jail.  A  somewhat  similar  law  had  been 
made  anno  iiyO  by  the  Assise  of  Northampton  as  to  persons 
who  had  acquitted  themselves  on  being  sent  to  the  water 
ordeal  under  the  oath  of  the  jurors  of  presentment.  The 
judgment  by  this  law  required  the  parties  to  find  pledges, 
permitting  them  to  remain  in  the  country ;  unless  they  had 
been  accused  of  murder  or  some  other  enormous  felony,  when 
they  were  sentenced  to  depart  the  country,  with  their  chattels, 
within  forty  days,  and  abjure  the  kingdom. 

The  nature  of  judgment  in  favour  of  a  plaintift'  varied 
according  to  the  nature  of  the  action.  During  the  anarchy  of 
Stephen  and  Matilda,  and  during  the  first  years  of  the  reign 
of  Henry  the  Second,  as  we  have  elsewhere  seen,  the  posses- 
sions and  interests  of  the  church  were  taken  into  the  protection 
of  the  Ecclesiastical  Court;  and  the  records  of  the  time  disclose 
the  practice  of  that  court  in  the  matter  of  final  judgments  in 


342  HISTORY   OF   PROCEDURE. 

favour  of  the  church.  Aside  from  the  pecuHar  pahis  and 
penalties  of  the  Spiritual  Court,  there  was  no  material  dif- 
ference, as  has  been  shown,  between  the  procedure  of  that 
court  and  the  procedure  of  the  lay  courts  ;  and  there  is  no 
reason  to  suppose  the  existence  of  any  difference  in  matters  of 
final  judgment.  Church  causes  relating  to  property  about 
the  middle  of  the  twelfth  century  will  show  the  general 
practice  of  the  time,  in  substance,  as  well  as  the  special 
practice  of  the  Spiritual  Court. 

In  the  case  of  a  recovery  of  lands,  the  judgment  of  the 
court,  pronounced  by  the  archdeacon  or  other  presiding  officer, 
was  that  investiture  or  seisin  be  given  the  plaintiff. i  Thus  in 
the  case  of  Abbot  Gilbert  (of  Gloucester)  v.  Earl  Gilbert,2 
anno  1145,  an  action  for  the  recovery  of  two  churches  unjustly 
seized  by  the  defendant,  the  record  tells  us  that  the  cause  having 
come  on  for  trial  in  open  synod,  after  the  defendant  had  often 
been  summoned  but  to  no  purpose,  and  the  plaintiff  had  made 
out  his  case  by  charters  and  by  the  testimony  of  the  synod  ; 
"we  adjudged  investiture  of  the  said  churches  to  the  abbot 
and  church  of  Gloucester,  and  by  the  keys  of  the  said  churches 
we  inducted  him  into  possession  thereof  by  judgment  of  the 
whole  of  our  synod." 

There  is  a  similar  case  of  the  year  11 56,  between  the 
successor  (abbot  Hamlin)  of  the  same  plaintiff  and  William, 
earl  of  Gloucester.^  In  a  record  of  this  case,  an  action  in  the 
Ecclesiastical  Court  to  recover  the  church  of  St.  Gundley, 
Theobald,  archbishop  of  Canterbury,  says  that  because  the 
defendant  wholly  refused  to  appear  before  him  at  the  peremp- 
tory day  ("  ad  diem  peremptorium,  ante  nostram  prcesentiam") 


'  Taking  property  into  llie  king's  hand  must  not  be  confounded  with  final 
process.  That  was  done  under  mesne  process.  See  anlc,  p.  221.  Tlie  king  held 
the  property  under  the  process  of  precipe  quod  reddat,  on  failure  of  the  tenant  to 
answer  the  third  summons,  for  fifteen  days,  subject  to  a  right  to  replevy ;  after 
which  time,  if  the  tenant  had  not  replevied,  the  land  was  adjudged  to  the  demandant, 
subject  to  a  writ  of  right  by  the  tenant. — Glanvill,  lib.  i,  c.  7. 

'  Placita  Ang.-Norm,  150.  ^  lb.  182,  183. 


THE    FINAL  JUDGMENT.  343 

and  to  answer  Hamlin  and  the  monks  of  Gloucester  of  tlie 
church  of  which  he  had  unjustly  disseised  them,  they  restored, 
in  canonical  manner,  by  canonical  judgment,  to  the  abbot 
and  his  monks  the  church  in  question.  And  he  adds,  as 
if  it  were  feared  that  the  defendant  would  not  respect  the 
judgment,  a  direction  for  the  exercise  of  the  spiritual 
authority  of  the  church  over  him  if  he  should  presume  to 
harass  the  abbot  and  monks  in  their  possession.  He  was  to 
be  coerced  to  justice  by  ecclesiastical  vengeance  enjoined 
throughout  the  dioceses.  A  similar  cause  and  judgment 
follow  against  a  certain  clerk  named  Picot,  whom  the  earl  of 
Gloucester  had  inducted  into  the  church. '  It  was  ordered 
that  if  Picot  refused  to  give  up  the  key,  the  person  addressed 
in  the  record  (Nicholas,  bishop  of  Llandaff)  should  make  a 
new  key,  open  the  church,  and  give  to  the  abbot  investiture 
of  the  church,  houses,  and  pertinents,  without  delay.  And  if 
Picot  w^ere  refractory  and  molested  the  abbot,  he  was  to  be 
subjected  to  ecclesiastical  discipline. 

In  the  case  of  a  recovery  of  lands  from  a  person  of  high 
station  in  the  church,  the  practice  in  the  first  instance  pro- 
bably was  to  direct  him  to  give  seisin  to  the  demandant,  or 
upon  failure  so  to  do  to  appear  in  court  upon  a  day  named 
and  show  cause  therefor.  There  is  a  case  of  the  year  11 94 
which  supports  this  suggestion,  and  shows  what  followed  upon 
non-appearance.  It  was  commanded  the  abbot  of  B.,  according 
to  the  Rotuli  Curi^E  Regis,^  that  he  deliver  the  advowson  of 
the  church  of  E.,  of  which  he  was  incumbent,  to  Richard  de 
T.,  on  account  of  a  claim  which  Richard  had  successfully 
made  to  the  said  church,  in  the  King's  Court ;  and  unless  he 
should  do  so,  he  should  be  before  the  justiciars  at  West- 
minster on  the  feast  of  St.  Michael  in  fifteen  days  to  show 
why  he  had  not  done  it.  And  the  said  Richard  (the  record 
proceeds  to  state)  came  and  offered  himself,  and  waited  until 
the  fourth  day ;  and  the  abbot  came  not  nor  essoined  himself 

'  Placita  Aug. -Norm,  184,  185.  -  i  Rotuli,  4. 


344  HISTORY   OF  PROCEDURE. 

and  summons  was  proved.  Judgment  that  the  abbot  be 
put  by  gage  and  pledge  to  be  at  Westminster  in  the  octaves 
of  St.  Martin  to  show  why  he  had  not  come  on  the  day  set 
for  him  in  court,  and  (to  answer)  concerning  a  capital  plea ; 
that  is,  the  full  wite  or  mulct. 

In  the  event  of  the  success  of  the  demandant  in  a  writ 
of  right  as  to  land,  whether  in  the  duel  or  in  the  Grand 
Assise,  the  final  judgment  required  the  sheriff  to  disseise  the 
tenant,  without  delay,  of  the  land  in  question,  with  all  the 
fruits  and  produce  found  upon  it,  and  give  the  same  to  the 
demandant.!  In  case  there  was  any  doubt  as  to  the  boun- 
daries of  the  fee  in  question,  the  king's  special  vv^rit  issued, 
directing,  if  we  may  judge  generally  from  a  single  case,  a 
survey  by  twelve  legal  men  of  the  vicinage  who  knew  the 
bounds  of  the  tenement  and  were  sworn  to  speak  the  truth 
thereof.2 

In  like  manner  if  the  suit  was  for  default  in  performing 
services  due  by  reason  of  tenure,  the  judgment  was  for  the 
recovery  of  the  land,  unless  the  plaintiff  had  called  for  com- 
pensation only.  He  had  the  right,  it  seems,  to  sue  for  the 
land  upon  default  of  service,  and  was  not  compelled  to  demand 
performance  or  compensation.  The  several  cases  of  suits  by 
abbot  Faritius^  {anno  iioi)  in  respect  of  knights'  fees  will 
serve  as  an  illustration.  In  one  of  these  cases  he  sues  William, 
the  king's  chamberlain,  for  neglecting  or  refusing  to  furnish  a 
knight  on  the  occasion  of  the  threatened  conflict  between 
Henry  the  First  and  his  brother  Robert,  in  the  first  }'ear  of 
Henry's  reign.  The  defendant  was  compelled  to  admit  the 
abbot's  claim  ;  and  though,  as  the  record  states,  it  seemed  that 
by  the  law  of  the  land  William  justly  deserved  to  be  outlawed, 
still  by  the  intercession  of  the  good  men  present  the  plaintiff 
gave  the  land  to  William  upon  the  agreement  that  he  should 

'  Glanvill,  lib.  2,  c.  3,  §  ii. 

-  Placita  Ang.-Norm.  1 75,  early  in  the  reign  of  Henry  II. 

3  lb.  75-7S. 


THE    FINAL   JUDGMENT.  345 

become  the  man  of  the  abbot,  and  pay  him  ten  pounds  by 
way  of  penalty,  etc. 

Judgment  in  favour  of  the  demandant  In  an  assise  of  mort 
d'anccstor,  or  of  the  last  presentation,  or  of  novel  disseisin  was 
that  seisin  should  be  given  him  ;  and  a  writ  for  this  purpose 
Avas  issued  commanding  the  sheriff  to  cause  him  to  have  it 
without  delay. I  In  the  case  of  the  assise  of  mort  d'ancestor, 
the  demandant  was  entitled,  together  with  the  seisin,  to  the 
possession  of  all  the  chattels  found  in  the  fee  at  the  time  of 
delivering  the  seisin.-  In  the  assise  of  novel  disseisin,  the 
tenant,  if  he  failed,  was  amerced  for  the  disseisin,  and  the 
demandant  was  entitled  to  have  judgment  for  what  in  modern 
times  would  be  included  within  the  term  "mesne  profits." 
A  special  writ  was  obtainable  for  this  purpose,  requiring  de- 
livery of  the  "chattels  and  fruits,"  if  the  sheriff  did  not  attend 
to  the  matter  on  giving  seisin  to  the  demandant.  Glanvill, 
while  not  quite  clear  as  to  what  the  "chattels  and  fruits"  thus 
to  be  delivered  were,  says  that  in  no  other  recognition  did  the 
judgment  usually  speak  of  chattels  or  fruits,  from  which  it  is 
to  be  inferred  that  something  different  is  meant  from  what 
he  had  said  about  judgment  in  the  assise  of  mort  d'ancestor, 
above  mentioned.  It  is  clear  that  the  demandant  was  entitled 
to  damages  besides  seisin.  Many  cases  in  the  RotuH  of  judg- 
ment in  novel  disseisin  show  this.  "Judgment  that  William 
have  seisin  and  Nigel  be  in  mercy.  Damage  four  shillings, 
fine  half  a  mark."^  "Judgment  that  Robert  have  seisin  and 
Walter  be  in  mercy  for  the  disseisin.  Damage  for  the  disseisin 
half  a  mark."4  "Damage  half  a  mark."S  "Damage  one 
mark."6  "Damage  two  shillings." 7  "Fine  half  a  mark, 
damage  twenty  shillings." s  "  Damage  five  shillings,  fine  half 
a  mark."9     "  Damage  done  tJiercto  thirty  pence,   fine  half  a 


'  Glanvill,  lib.  13,  passim.     The  other  recognitions  were  mostly  for  incidental 
purposes.  -  lb.  c.  9. 

3  I  Rotuli,  177.  ■*  Ibid.  s  lb.  329.  ^  lb.  330. 

^  lb.  350.  8  lb.  374.  9  lb.  391. 


346  HISTORY   OF   PROCEDURE. 

mark." I  ''Damage  one  mark,  fine  one  mark."-  "Damage 
done  thereto  one  mark,  fine  two  marks." •^  "Damage  twenty 
shillings,  fine  hah"  a  mark." 4  "  Damage  done  thereto  six 
shiUings,  fine  half  a  mark."  ^  « Damage  done  thereto  ten 
shillings,  fine  upon  Aristotle  forty  shillings,  upon  Ralph  half 
a  mark." 6  "  Damage  nine  marks  seven  shillings  and  five 
pence,  and  William  to  be  amerced."  7  These  fines  were  the 
amercements  for  the  disseisin  ;  and  they  were  inflicted  as  well 
when  the  tenant  succeeded  as  when  he  failed,  if  the  disseisin 
were  violent.^ 

In  the  case  of  judgments  upon  simple  money  demands,  the 
defendant,  if  he  did  not  make  present  payment,  was  probably 
required  to  find  sureties  for  the  amount,  when  he  lacked 
sufficient  property,  subject  to  levy,  to  pay  the  sum  adjudged 
due.  In  the  case  of  The  King  v.  Thomas  a  Becket,9  the 
defendant  was  persuaded  to  put  himself  upon  the  king's 
mercy,  and  was  thereupon  adjudged  to  pay  five  hundred 
pounds,  for  which  he  found  sureties.  Failure  to  do  this  when 
required  probably  entailed  outlawry  or  loss  of  freedom, 
according  to  circumstances,  in  the  case  of  a  layman,  unless 
the  defendant  were  so  fortunate  as  to  secure  the  king's 
discharge. 

If  the  defendant  were  prosecuted  and  found  guilty  of  the 
commission  of  a  considerable  crime  below  the  grade  of  treason 
or  felony,  such  as  theft  of  valuable  property,  the  judgment, 
besides  requiring  restitution  or  compensation,  or  security  there- 
for, commonly  ordered  the  defendant  to  suffer  mutilation,  as 
in  Ailward's  Case,io  or  if  the  offence  was  petty,  merely  im- 
prisonment or  a  simple  amercement.  But  in  prosecutions  of 
treason  or  felony,  the  prisoner,  if  found  guilty,  was  adjudged 
in  the  king's  mercy  of  life  and  limb  ;"  and  added  to  this  were 

'  I  Rotuli,  396.  lb.  422.  '  Ibid.  ■»  lb.  424.  s  lb.  430. 

^  lb.  434.  1  lb.  446.  8  Glanvill,  lib.  13,  c.  38,  §  2. 

9  Placita  Ang.-Norm.  211.  '°  lb.  260. 

"  Glanvill,  lib.  14,  c.  i,  §  t.     See  the  cases  of  Roger  de  Breteuil,  ib.  Ii,  and 
of  earl  Waltheof,  ib.  12,  teinp>  Wm.  I. 


THE    FINAL  JUDGMENT.  347 

confiscation  of  goods  and  the  perpetual  disherison  of  his  heirs. ^ 
By  the  continental  law,  at  least  within  the  bounds  of  modern 
France,  and  by  the  Assises  of  Jerusalem,  the  pledges  of  the 
defendant  were  subject  to  the  same  punishment  as  that  ad- 
judged upon  the  principal  ;  though  not,  it  seems,  in  the  same 
odious  form  sometimes  inflicted  upon  the  latter.^  It  is  doubtful 
if  such  consequences  followed  upon  conviction  in  England. 
In  great  negotiations  it  was  common  for  each  of  the  parties 
to  pledge  obsides  to  go  "  in  captione  "  of  the  other  party  upon 
his  default  in  the  performance  of  his  part  of  the  engagement. 
Thus,  in  an  engagement,  anno  1103,  between  Henry  the  First 
and  Robert,  count  of  Flanders,  for  supplying  the  king  with  a 
thousand  soldiers,  twelve  obsides  of  the  count  "  ponent  se  in 
captione,  in  turri  London,  vel  in  alio  loco,  ubi  rex  eos  libere 
possit  retinere  ad  proficuum  suum,"  in  case  of  their  principal's 
default.3  But  this  is  all  that  the  known  records  justify  us  in 
asserting  of  the  law  in  this  particular  as  to  pledges. 

The  judgment  pronounced  upon  a  person  who  had  entered 
into  pledge  to  produce  for  justice  a  person  accused  of  theft 
or  robbery,  and  had  failed  to  perform  his  engagement,  was, 
according  to  the  Mercian  law,  as  follows  :  He  should  restore 
the  stolen  chattels  and  pay  twenty  shillings  (to  the  prosecutor 
as  infra)  for  the  head  of  the  fugitive,  and  four  pence  to  the 
keeper  of  the  stocks,  and  a  halfpenny  "pro  fossoris  "  ("pur la 
besche  "),  and  to  the  king  besides,  forty  shillings.  According 
to  the  West-Saxon  law,  the  oledge  should  give  one  hundred 
shillings  for  the  head  to  him  who  prosecuted  the  claim,  and  to 
the  king  four  pounds.  By  the  Dane  law  he  forfeited  eight 
pounds,  of  which  seven  went  to  the  king,  and  the  eighth  for 
the  head,  to  the  prosecutor.  But  if  within  a  year  and  a  day 
he  should  find  the  accused  and  bring  him  to  justice,  the  pound 


'  Glanvill,  lib.  14,  c.  I,  §6. 

-  See  Chanson   de   Roland,   line  3958   (Gautiei) ;    Huon  de    Bordeaux,   44 
(Guessard)  ;  i  Assises  de  Jenisaleni,  c.  104,  p.  175  (Beugnot). 
3  Rymer,  Foedera,  2,  3. 


348  HISTORY   OF   PROCEDURE. 

should  be  restored  to  the  pledging  party,  and  justice  done 
upon  the  criminal." 

Outlawry  was  usually  a  last  resort.  It  was  seldom  pro- 
claimed except  as  punishment  for  contumacy  ;  that  is,  for 
unyielding  disobedience  of  the  requirements  of  the  law  when 
once  set  in  motion,  or  of  the  commands  of  the  king  or  of  the 
courts.2  This  might  be  by  refusal  to  obey  summons,  as  in 
the  Case  of  Earl  Ralph,^  in  the  time  of  the  Conqueror,  and  in 
the  Case  of  Roger  de  Belesme,^  in  the  time  of  Henry  the 
First,  or  it  might  be  by  refusal  to  obey  the  medial  or  the  final 
judgment  of  court.  But  such  a  consequence  could  not  follow 
a  refusal  to  obey  the  medial  judgment  of  a  tribunal,  it  seems, 
except  when  that  judgment  required  the  party  to  purge  him- 
self of  an  accusation  of  crime,  or  perhaps  of  a  delict,  and  he 
had  fled.  Failure,  or  even  refusal,  to  make  the  proof  in  a 
civil  cause  relating  to  property  or  to  services  was  followed  only 
by  amercement,  and  judgment  against  the  pledges,  if  pledge 
had  been  given.  This  was  so,  because,  when  the  defaulting 
party  was  the  plaintiff,  no  damage  was  done,  and  when  he 
was  the  defendant,  the  means  of  satisfying  the  demand  of  the 
opposite  party  was  at  hand  in  the  property  in  question,  or  in 
the  person  of  the  pledges.  When  this  was  not  the  case, 
refusal  to  perform  the  judgment  of  court  requiring  the  de- 
fendant to  give  security  probably  subjected  him,  if  a  layman, 
to  outlawry  and  its  consetiuences. 

The  contumacy  of  an  alleged  criminal,  or  of  a  recusant 
defendant,  if  not  already  known  to  the  king,  was  reported  to 
him,  on  judgment  of  court,  for  the  final  sentence  of  the  law. 
And  now,  unless  the  influence  of  others  or  the  king's  own 

'  Wm.  I.  i.  c.  3. 

°  Laws  Hen.  I.  c.  53,  §  i  ;  c.  66,  §§  i,  2.  See,  however,  c.  52,  §  i.  And 
see  Assise  North,  c.  13. 

3  Placita  Ang.-Norm.  11. 

4  lb.  83.  See  also  Laws  Wm.  I.  c.  52  ;  Edw.  Coiif.  cc.  6,  18,  37,  38.  It 
seems  by  inference  that  in  the  eleventh  century  outlawry  had  extended  to  children 
born  after  the  offence.  The  law  cx]Mcssly  exempts  those  born  before,  and  is 
silent  as  to  those  born  after. 


THE   FINAL  JUDGMENT.  349 

disposition  towards  him  availed,  the  hopeful  outlaw,  who 
had  preferred  the  uncertainty  of  concealment  and  flight  to 
the  doubtful  event  of  the  ordeal  or  the  duel,  or  to  the  certainty 
of  imprisonment,  was  turned  over  to  the  tender  mercies  of 
that  disproportionate  part  of  the  population  who,  strangers 
to  pity,  knew  no  shrinking  at  the  sight  of  blood. ^ 

'  It  was  declared  of  one  who  had  broken  the  peace  of  the  church  :  "  Si  infra 
XXX.  et  unum  diem,  per  amicos  suos  seu  per  justiciam  regis  reperire  non  poterit, 
ore  suo  utlagabit  eum  rex.  Et  si  postea  repertus  fuerit  et  teneri  possit,  vivus  regi 
reddatur,  vel  caput  ipsius  si  se  defenderit ;  lupinum  enim  caput  geret  a  die 
utlagacionis  sue,  quod  ab  Anglis  nnluesheued  [wolfshead]  nominatur.  Et  hec 
sentencia  communis  est  de  omnibits  utlagis." — Laws  Edw.  Conf.  c.  6. 

Contumacy  towards  the  Ecclesiastical  Court  was  punished  by  excommunication ; 
to  which,  if  need  were,  the  arm  of  the  secular  power  was  added.  See  Charter  of 
William  the  Conqueror,  Appendix,  No.  i.  See,  however,  the  modification  made 
by  the  Constitutions  of  Clarendon,  c.  10,  ante,  p.  37. 


APPENDIX. 


APPENDIX. 


CARTyE    ET    PLACITA. 


All  of  the  following  records,  except  the  first  three  and  the  last  one, 
are  of  litigations  in  Normand}^,  from  the  time  of  William  the  Conqueror 
until  the  reign  of  Henry  the  Second,  inclusive.  With  the  exception 
of  Nos.  1-3,  they  have  never  before  been  printed  in  full,  most  of 
them  not  at  all.  No.  i  is  the  famous  charter  of  the  Conqueror  con- 
cerning jurisdiction  of  spiritual  causes  ;  No.  2  is  the  record  of  an 
important  cause  at  Antioch  in  the  twelfth  century  ;  and  No.  3  is 
the  record  of  a  temporal  cause  before  a  clerical  court  in  the  time  of 
Henry  the  Second. 


No.  I.]  CARTA  Wn.LELMI.' 

^V.  gracia  Dei  rex  Anglorum  R.  Bainardo  et  G.  de  Magnavilla, 
et  P.  de  Valoines,  ceterisque  meis  fidelibus  de  Essex  et  de  Hertford- 
schire  et  de  Middlesex,  salutem.  Sciatis  vos  omnes,  et  ceteri  mei 
fideles  qui  in  Anglia  manent,  quod  episcopales  leges,  que  non  bene, 
nee  secundum  sanctorum  canonum  precepta,  usque  ad  mea  tempora 
in  regno  Anglorum  fuerunt,  communi  concilio  et  consilio  archi- 
episcoporum  et  episcoporum  et  abbatum,  et  omnium  principum 
regni    mei,    emendandas     judicavi.      Propterea    mando,    et    regia 

'  I  Anc.  Laws,  495  (Svo  cd.). 

2   A 


354  APPENDIX. 

auctoiitate  piecipio,  ut  nullus  episcopus  vel  archidiaconus  de  legibus 
episcopalibus  amplius  in  hundret  placita  teneant,  nee  causam  que  ad 
regimen  animarum  pertinet  ad  judicium  secularium  hominum  addu- 
cant ;  sed  quicunque,  secundum  episcopales  leges,  de  quacumque 
causa  vel  culpa  interpellatus  fuerit,  ad  locum  quem  ad  hoc  episcopus 
elegerit  vel  nominaverit  veniat,  ibique  de  causa  vel  culpa  sua  respon- 
deat, et  non  secundum  hundret,  sed  secundum  canones  et  episcopales 
leges,  rectum  Deo  et  episcopo  suo  faciat.  Si  vero  aliquis  per  superbiam 
elatus  ad  justiciam  episcopalem  venire  contempserit  vel  noluerit, 
vocetur  semel,  secundo,  et  tercio ;  quod  si  nee  sic  ad  emendacionem 
venerit,  exeommunieetur ;  et  si  opus  fuerit  ad  hoe  vindieandum, 
fortitudo  et  justicia  regis  vel  vicecomitis  adhibeatur.  Ille  autem  qui 
vocatus  ad  justiciam  episcopi  venire  noluerit,  pro  unaquaque 
vocacione  legem  episcopalem  emendabit.  Hoc  eciam  defendo  et 
mea  auctoritate  interdico,  ne  ullus  vicecomes  aut  prepositus  seu 
minister  regis,  nee  aliquis  laicus  homo,  de  legibus  que  ad  episcopum 
pertinent  se  intromittat,  nee  aliquis  laicus  homo  alium  hominem  sine 
justicia  episcopi  ad  judicium  adducat.  Judicium  vero  in  nullo  loco 
portetur,  nisi  in  episcopali  sede,  aut  in  illo  loco  quem  ad  hoc 
episcopus  constituerit. 


No.  2.] 

Privilegium  Raimundi,  principis  Antiochioe,  de  justicio  in  ipsius 
curia  facto,  de  injuria  quam  conventus  ecclesiai  Sancti  Pauli  diutis- 
sime  canonieis  Sancti  Seiiulcri  super  injusta  cujusdam  gardini 
possessione  intulerat.     [Anno  1140.]' 

In  nomine  sanctte  et  individuas  Trinitatis,  Patris  et  Filii  et 
Spiritus  Sancti,  amen.  Antiquapatrum  tradit  auctoritas  ut,  quotiens 
digne  rei  Celebris  institutio  ^quitatis  meretur  effieaciam,  manifestis 
profecto  memorialis  paginae  apicibus  eo  attentius  prKmuniri  debeat, 
quo  et  circumspectius  oblivionis  calcare  insolentiam,  et  totius 
ineursum  calumniK  perpetuo  intendit  praeeanere.  Pr^sentibus  igitur 
et  eorum  posteris  necessario  innoleseimus  quoniam  ego  Raimundus,= 
prseclaris  siquidem  Pictavorum  ortus  natalibus,  cum  ex  superno 
munere  Antiocheni  regni  solium  obtinuissem,  ad  sacrosancta  Hieru- 

'  2  Assises  de  Jerusalem,  Beugnot,  501. 

=  Raymond,  youngest  son  of  William  VII.,  count  of  Poitiers,  became  in  the 
year  11 36  prince  of  Antioch. 


CART^  ET   TLACITA.  355 

salem  loca,  tertio  niei,  principatus  anno,  Domino  prospcrante 
adoraturus,  ascendi.  Ubi  vcro  inter  ca^tera  liumanas  reparationis 
gaudia  singulari  potius  gloriosissimi  Sepulcri  visitatione  delectatus,  a 
domno  Willelmo,  ejusdem  sanctx  civitatis  reverentissimo  patriarcha, 
sed  et  a  domno  Petro  venerabili  Dominici  Sepulcri  priore,  necnon 
ab  omni  ipsius  loci  sancto  conventu,  super  quibusdam  injuriis  diu 
penes  Antiochiam  excellentissimre.  Dei  et  hominis  Cliristi  Jhesu 
sepulturte  irrogatis,  devotum  et  humilem  clamoris  effectum  suscepi, 
pari  etiam  omnium  prece  crebrius  in  Domino  exoratus,  ut  memorato 
ineffabilis  mysterii  loco  celeberrimo  sua  plenarie  jura,  quorum 
eatenus  injusta  privatione  graviter  multatus  fuerat,  ob  mex  animce 
remedium  misericorditer  restituerem.  Verum  ego,  cum  tantorum 
pice  petitioni  intercessorum  nee  possem  nee  deberem  adversari, 
quippe  qui  justam  cujuslibet  oppressi  vocem,  nedum  communem 
tant^  reverentioe  clamorem  ex  debito  clementer  admittere  exiget. 
Usque  adeo  eorum  vota  diligentius  sum  prosecutus,  ut  quicquid  de 
justicia  Dominici  Sepulcri  in  mea  manu  consistebat,  totum  liben- 
tissime  ex  tunc  in  asternum  Christo  Domino,  et  ejus,  ad  perhennem 
sute  resurrectionis  memoriam,  servientibus  gratis  redderem.  Sed  et 
de  aliis  omnibus  quotquot  ad  suum  jus  pertinent,  quse  scilicet  in 
alienos  possidentium  usus  cesserant,  me  eis  devotissime,  in  meas  curiee 
audientia,  justitiam  executurum  promisseram.  Ea  propter,  ipso  meae  a 
Hierosolymis  regressionis  anno,  prcedictus  Dominici  Sepulcri  prior, 
et  Vulgrinus  praspositus,  assumptis  secum  aliquot  suis  fratribus, 
prima  die  mensis  Februarii  Antiochiam  venientes,  non  multo  post  de 
mei  promissi  executione  me  vivaciter  requirendo  convenerunt,  ut  et 
nominatim  de  quadam  injuria,  quam  conventus  ecclesios  Sancti  Pauli 
super  injusta  cujusdam  gardini  et  aliquantse  terrce  possessione  ipsis 
diutissime  intulerat  (neque  enim  usque  ad  illud  temporis,  cum 
ssepius  suam  calumniam  praetendissent,  justitiam  quandoque  assequi 
potuerant) ;  de  ilia,  inquam,  tam  obstinata  injuria  sequitatis  audi- 
entiam  eis  accomodarem.  Ad  hoc  itaque  exequendum  dominum 
Robertum,  ccenobii  Sancti  Pauli  abbatem,  et  universum  conventum 
diligenti  opera  studui  prsemoneri.  Quorum  omnium  una  vox  et 
eadem  fuit  sententia  :  hujus  videlicet  rei  discussionem  nullatenus 
ad  secularis  curiae  examen,  sed  ad  solum  domni  patriarchae  Antio- 
cheni  et  ipsius  ecclesice  spectare  arbitrium.  De  jure  enim  ecclesi- 
astico  tota  ilia  possessio  processerat,  prresertim  cum  eam  dominus 
sanctse  memoriae  Bernardus  patriarcha  olim  pro  commutatione  domus 
Stephani,   thesaurarii   ecclesicc   Sancti   Pauli,  dedisset :   data   etiam 


3s6  APPENDIX. 

autentica  sui  privilegii  sanctione,  quod  apud  se  habebant,  cum  domini 
augustcC  recordationis  Boamundi  junioris  convenientia  confirmasset. 
Ceterum  cum  illud  privilegium  me  exigente  in  medium  fuisset  pro- 
latum,  et  in  conspectu  circumstantis  curise  ad  finem  usque  aperte  et 
distincte  retractatum,  tanta   nimiorum   universis  coauditoribus  ejus 
patuit  digna  confutatio,  ut  quibusdam  aliis  quibus  seipsum  impugna- 
bat  proetermissis,  nee  unius  testis,  sicut  rerum  bene  gestarum  Veritas 
exigit,  quantulacumque  assertione  fulciretur.     Sic  tandem  voce  privi- 
legii omnino  cassata,  ex  communi  consequenter  curias  intuitu  dififinitum 
est,  quoniam  quando  quidem  coenobii  sancti  Pauli  monachis  nulla 
prorsus  ad  habendam  ecclesice  audientiam   ratio   suppetebat,    sine 
omni  subterfugio  tarn  ipsi  quam  et  Sancti  Sepulcri  canonici  alterutras 
sure  causae  allegationes  in  publicum  me^e  curi^  conferre  debebant, 
ibique  eorum  controversias  et  recto  judicio  dirimi  et  dictante  justitia 
terminari  opporteret.     Quia  vero  prjefatos  canonicos  diutius  noUem 
detinere,  proxima  quippe  Paschae  soleranitate  imminente,  certum  xv. 
diebus    terminum  utrique   parti  prjefigere    statui,    in    quo  monachi 
constanter  mihi  resistentes,   nullum  alium  placitandi  terminum  se 
quoquomodo  suscepturos  affirmabant,  nisi  quem  communis  curia  ex 
deliberatione  justitias  illis  designando  proferret.     Cum  ergo  corum 
voci    benigne    assensissem,    unanimi    totius    curicc    consideratione 
quadragenarii  muneri  clongaiio   est  utrisque  accommodata.     Cujus 
spatii   finalis   terminus  iii.   kalendas  Aprilis,   septima  quoque   feria 
quae   tunc    temporis   vigiliam    Dominica;    diei    Ramis    Palmarum 
pra^cessit,  accurrisse  dinoscitur.     Sane  in  die  constituta,  et  monachis 
ecclesise  Sancti  Pauli  et  Sancti    Sepulcri   canonicis,   in  loco   extra 
Antiochiam  qui  ad  Pontem  Ferri  dicitur  (ibi  enim  eo  tempore  in 
castris  commorabar),  mei  coram  prresentia  ad  suai  causre  negocium 
venientibus,  mihi  quippe  commodius  est  visum,   propter  plenioris 
consilii  habendam  sufficientiam,  usque  dum  Antiochiam  intrassem 
illud  oi)Us  debere  differri,  unde  et  usque  in  diem  tertiam  terminum 
consultius  prolongavi.     In  ea  itcrum  die  monachis  et  canonicis  in 
Antiocheno  palatio  coram  me  in  suse  causae  disceptationem  intentis, 
eandem  itidem  causam  usque  in  Sabbatum  Paschalis  hebdomadce 
protelavi :  non  enim  in  tam  arto  temporis  spacio  sufficiens  morum 
optimatum  consilium  convocare  potueram.     Cum  vivo  post  Domini 
Pascha  dies  prrefixi  termini  advenisset,  omnemque  curiee  ordinem 
mecum  ad  eam  audientiam  congregassem,  prima  diei  hora  canonici 
Sancti  Sepulcri  ad  suum  negocium  convenerunt,  monachis  quippe 
ecclesia;  Sancti  Pauli  ncquaciuam  vcl  tunc,  vel  postca   per  totam 


CART.E    ET    PLACITA.  357 

diem  conspectui  nostro  apparentibus.  Compcrta  ita([uc  coruin 
mora,  quid  me  deinccps  super  co  negocio  agere  deccrct,  baroncs 
astantes  affectuose  consului,  qui  nimiruni,  communicato  consilio, 
responderunt  ut,  quoniam  ccclesia  Eeati  Pauli  sub  meo)  defensionis 
ope  consistebat,  viva  meorum  nunciorum  voce  monachos  ad 
constitutam  causce  audientiam  ex  gratia  debere  invitare,  meis  quoque 
nunciis  id  insuper  ex  mei  parte  monachis  intimandum  prcecipere. 
Quoniam  nisi  saltem  ad  ipsius  diei  nonam  placitaturi  venirent, 
tantumdem  eis  abesse  sufficeret,  quantum  ei  prolata  judicii  sententia 
eos  omnino  confutasset.  Nee  mora,  assumptis  de  medio  cEterorum 
baronum  Guiterio  de  Moro  et  Ricardo  de  Belmont,  abbatem  et 
monachos,  sicut  mihi  suggestum  fuerat,  diligenter  appellavi,  qui 
omnes,  nulla  legalis  exonii '  excusatione  pra^tenta,  se  nee  coram  me 
ventures,  nee  mese  curiae  judicium  subituros,  una  voce  responderunt. 
Verum  ego,  tam  pertinaci  eorum  responso  accepto,  ne  quid  forte 
quasi  minus  justo  per  prrecipitationem  fieret,  canonicos  usque  in 
diem  tertiam  equanimiter  expectare  exoravi.  Qui  et  ipsi  satis 
pacifice  concesserunt.  Porro,  die  tertia  expectata,  soli  canonici 
justitiam  exigentes  presto  affuerunt ;  quorum  profecto  justce  petitioni 
benigne  assentiens,  totum  differendte  justiti^  pondus,  maxime  ex 
ipsius  rei  conferendis  circumstantiis,  mens  curise  imposui.  Unanimi 
igitur  et  communi  omnium  baronum  consultatione  est  approbatum, 
quoniam  canonici,  qui  nunquam  diem  vel  causam  subterfugerant, 
plenaria  sui  juris  possessione  justo  judicio  debebant  investiri.  Hoc 
tamen  modo  designate,  ut  ipsi  investituram  tam  monachis  ecclesi^e 
SaiKrti  Pauli,  quam  etiam  cuilibet  calumnianti,  quicquid  mea  curia 
adjudicaret,  exequerentur.2  Eo  itaque  modo  et  conditione,  prcefatos 
Dominici  Sepulcri  canonicos  memorato  gardino  et  reliqua  terra 
adjacenti,  suo  scilicet  jure,  xvii.  kalendas  Maii,  libere  et  quiete 
investivi.  Qua  statim  investitione  recepta,  dominus  prior  et  ca^teri 
canonici  sese  ecclesiae  Beati  Pauli  justitiam  executuros  gratis 
obtulerunt.  Sed  nee  unus  affuit  qui  eos  in  aliquo  impeteret.  Item, 
nolumus  quasi  neglectum  sub  silentio  prasteriri,  quoniam  saspc  dicti 
canonici  Grascos  testes,  moribus  et  seno  matures,  in  medium 
produxerunt,  qui  omnes,  non  vulgari  conjectural  opinione,  sed  certa 
visus  attestatione,  se  illam  de  qua  loquimur  Sancti  Sepulcri  justitiam 

'  Essoin. 

^  The  judgment  was  subject  to  a  writ  of  right  by  the  monks  of  St.  Paul. 
Comp.  Glanvill,  lib.  i,  c.  16  ;  and  see  as  to  novel  disseisin,  I  Assises  de  Jerusalem, 
103  (Beugnot)  ;  Brunncr,  .Scliwurg.  346,  347. 


358  APPENDIX. 

juxta  enrich  decretum  comprobaturos  asserebant.  Cum  vero  eorum 
testimonia  non  nisi  suo  loco  esset  necessarium  audiri,  prassertim 
parte  altera  absente,  product!  tameii  testes  suo  fortassis  celeri  obitu 
justitiani  gloriosi  Sepulcri  posse  deprimi  formidantes,  quod  ore  vivaci 
et  corde  memori  erant  confirmaturi,  totum  ad  plenum  litteris 
annotatum  reliquerunt,  ut  in  posterum,  si  necessitas  forte  exigent, 
pro  viva  voce  scripti  non  desit  auctoritas,  Testium  quoque  nomina 
sunt  hsec ;  Gregorius,  ecclesiae  Sancts  Marine  cantor ;  Thomas, 
subcantor;  Michael,  filius  Molkini;  Abraham,  filius  Sucar.  Omnibus 
tandem,  non  sine  onerosa  differendi  prolixitate,  Deo  auctore,  ad 
perfectum  deductis,  ego  Raimundus,  Dei  nutu  princeps  Antiochenus, 
sed  et  domina  Constantia  principissa,  mea  uxor  illustrissima, 
legitimum  fact?e  investitionis  donum  sanctissimo  Domini  Sepulcro, 
pari  assensu  et  donatione  in  ?eternum  quiete  possidendum,  damns 
et  concedimus ;  principali  quoque  hujus  privilegii  nostrique  sigilli 
confirmatione  decoratum  perpetua  stabilitate  prremunimus.  Factum 
est  autem  hoc  privilegium  anno  Incarnati  Dei  Verbi  MCXL°,  mense 
Aprili,  indictione  Iir\  quarto  quofjue  anno  principatus  domini 
Raimundi,  Antiocheni  principis  invictissimi.  Testes  subscript! : 
[Here  follow  the  names  of  twenty-nine  persons,  of  various  ranks, 
from  archbishop  down  to  notary.]  Datum  Antiochi^,  xiii.  kalendas 
Maii,  per  manus  Odonis  cancellarii. 


No.  3.] 

GODFREY  DE   LUCI   v,  ODO,   ABBOT   OF   BATTEL. 

Anno  1 1 76.' 

[An  action  before  an  Ecclesiastical  Council  concerning  the  right 
to  the  church  at  Wi ;  the  plaintiff  claiming  under  a  gift  of  the  king, 
the  defendant  denying  the  validity  of  the  same.  The  abbey  of  Battel 
having  become  vacant  in  the  year  1 17 1,  by  the  death  of  abbot  Walter, 
Richard  de  Luci,  the  chief  justiciar,  obtains  it  from  the  king  for  his 
son  Godfrey,  the  plaintiff;  the  king's  presentation  being  received  by 
Richard,  archbishop  elect  of  Canterbury,  and  Godfrey  instituted  by 
him.  The  defendant  Odo  succeeds  to  the  abbacy  in  the  year  11 75, 
and  refuses  to  acknowledge  the  validity  of  Godfrey's  claim  to  the 
church.] 

Tunc  temporis  accedit  (^uendam  Hugonem.-     Romance  ecclesise 

'  Chron.  de  Bello,  170  (Ang.  Christ.  Soc).        -  Commonly  called  Ilugc/un. 


CART?E   ET   PLACITA.  359 

diaconum  cardinalem  a  latere  domini  papce  Alexandri  missum,  lega- 
tionis  gratia  venire  in  Angliam,  qui  convocatis  archiepiscopis,  episcopis, 
abbatibus,  et  totius  regni  clero  concilium  gcnerali  apud  Westmonas- 
terium  concitavit,  turn  de  negotiis  pro  quibus  venerat  tractaturus,  turn 
de  statu  Anglicance  ecclesise,  et  causis  ecclesiasticis  cognaturus. 
Abbate  de  Bello,  generali  edicto  inter  ca.'teros  ad  concilium  vocato, 
scripsit  ei  prccdictus  legatus  auctoritate  apostolica,  speciale  sibi 
dirigens  mandatum,'  ut  omni  excusatione  remota  in  prsesentia  sua 
appareret,  Godefrido  de  Luci,  super  ecclesia  de  Wi  responsurus,  et 
juri  pariturus.  Abbas  suscepto  hoc  mandate,  plurimum  turbatus 
est  animo,  sciens  dominum  regem  prsdictam  ecclesiam,  de  V/i 
prsefato  Godefrido  de  Luci,  vacante  ecclesia  de  Bello,  absque  omne 
exceptione  dedissc  et  confirmasse,  ipsum  quoque  Godefridum  ad 
prassentationem  domini  regis  a  Ricardo  Cantuariensi  electo  fuisse 
susceptum,  et  auctoritate,  qua  electus  potuit,  in  ecclesia  institutum, 
carta  nihilominus  sibi  a  praefato  electo  super  ipsius  institutione 
prsestita,  quam  idem  electus  postmodum  ab  apostolica  sede  rediens, 
et  a  papa  Alexandre  consecratus,  jam  archiepiscopus,  jam  primas, 
jamapostolicte  sedis  legatus,  omni  qua  fungebatur  auctoritate  confirm- 
averat. 

[The  abbot,  in  perplexity  and  fear  of  offending  the  king,  the 
archbishop,  and  Richard  de  Luci,  still  resolves  to  defend  his  cause, 
and,  not  being  himself  a  lawyer,  seeks  the  assistance  of  various  persons, 
requesting  them  to  undertake  his  defence,  but  in  vain.  They  all  fear 
the  king  and  the  archbishop.     The  chronicle  proceeds  :] 

Celebratis  in  crastino  divinis  officiis,  simpliciter  cum  suis  ad  locum 
decisioni  causce  prasfixum  processit,  parte  adversa  ex  opposite  veniente 
cum  advocatorum  multitudine.  Procurator  et  advocatus  principalis 
in  causa  partis  adverse  erat  quidam  magister  Ivo  Cornubiensis,  qui 
procedens  in  medium,  litterasque  patentis  Godefridi  de  Luci  tunc  in 
transmarinis  scolas  frequentantis  in  publicum  proferens,  commissam 
sibi  manifestavit  causee,  procurationem,  et  Godefridi  ratihabitionem."" 
Erat  autem  tunc  ibi,  utpote  ad  concilium  vocati,  cleri  conventus 
maximus,  non  tamen  prsesidente  legato,  sed  quibusdam  suorum  quibus 
causae  commiserat  decisionem.  Pra^fatus  ergo  magister  Ivo  sic  exorsus 
ait.  "  Satis  vobis  domini  judices  ex  patent!  testimonio  Utterarum 
domini  mei  Godefridi  de  Luci  credimus  constare,  ipsum  utpote  in 

'  The  double  summons  is  worthy  of  notice. 

-  That  is,  Godfrey  put  Ivo  in  his  place  "lucrandum  vel  perdendum."  See 
anU,  p.  245. 


36o  APPENDIX. 

remolis  extra  hoc  regnum  paitibus  scholarum  studia  frequentantem 
luiic  causa;  sua;  interesse  non  posse,  mihique  causam  eandem  pro- 
curandam  commisisse.  Cujus  ego  advocationc  suscepta,  non  minorcm 
mihi  quam  si  dominus  meus  prresens  adesset  postulo  dari  audientiam, 
sed  tanto  diligentiorem,  quanto  causam  quam  fovendam  suscepi 
constat  esse  justiorem.  Cum  jam  huic  vita;  finem  fecisset  vir 
venerabilis  Walterus  abbas  de  Bello,  domini  mei  Godefridi  patruus, 
totiu5  monasterii  dispositis  in  regia;  sullimitatis  devenit  potestatem, 
adeo  ut  in  domini  regis  fuerit  arbitrio,  monasterii  ipsius  regimen  cui 
vellet  committere  cum  tamen  in  voluntatc  non  habuerit  aliquem  in  eo 
nisi  canonice  electum  substitui.  Nondum  penes  se  deliberaverat 
majestas  regia,  cui  monastorialis  praelationis  conferret  honorem,  cum 
presbiterum  quendam  Willelmum  personam  ecclesia;  de  Wi  contigit 
huic  vita;  renuntiare.  Dominus  rex  ratione,  qua  potuit  de  totius 
monasterii  corpore  pro  voluntate  disponere,  prredictam  ecclesiam  de 
Wi  in  fundo  monasterii  sitam  domino  nieo  Godefrido  de  Luci  pietatis 
et  caritatis  concessit  intuitu,  et  carta  sua  quam  ad  manuni  habemus, 
confirmavit,  ut  rex,  ut  fundi  dominus,  ut  monasterii  iUius,  prreter 
caetera  regni  monasteria,  speciaUs  patronus.  Nee  quidem  incongruum 
fuit  domino  regi  de  membris  disponere,  cui  totum  corpus  erat  in 
potestate."  Et  ha;c  dicens,  cartani  domini  regis  super  donatione  et 
confirmatione  in  medium  protuht.  Et  adiciens:  "Facta,"  inquit,  "jure 
patronatus  hujusmodi  donatione,  vir  venerabiHs  dominus  Ricardus 
tunc  Cantuariensis  electus,  dominum  meum  Godefridum,  auctoritate 
qua  potuit,  ad  preesentationem  domini  regis  suscipiens  personam 
absque  omni  exccptione  instituit,  datis  sibi  in  testimonii  munimentum 
institutionis  sure  htteris,  sigillo  quod  tunc  habere  videbatur  opposite, 
Hcet  nondum  in  plena  potestate  videretur  constitutus."  Proferensque 
in  publicum  litteras,  "  En,"  inquit,  "  ipsius  electi  testimonium.  Sedem 
apostolicam  postmodum  adicns,  ibique  a  domino  papa  solenniter 
consecratus,  ac  inde  cum  plena  potestate  archiejiiscopi,  primatis  et 
legati  denuo  rediens,  quod  electus  minus  antea  facere  jioterat,  jam 
confirmatus  plena  auctoritate  instituendo  et  confirmando  roboravit." 
Et  hffic  dicendo,  cartam  arcliiepiscopi  ipso  etiam  archicpiscopo  prce- 
sente  in  omnium  oculis  ostendit,  ita  subinferens.  "  Cum  igitur,"  inquit, 
"  hujus  ecclesia;  de  Wi  non  qualemcunque  j)ortionem  sed  eccle- 
siam totam  cum  omni  juris  sui  intcgritate  dominus  meus  (jodcfridus 
tam  excellenti  auctoritate  obtinueril,  dominus  abl)as  et  monachi  de 
.Bello   ipsius   ecclesire   medietatem    contra   regiam   cpiscopalemque 


CART^   ET   PLACITA,  361 

dignitatem  clctincnt  occupatam.  Ergo  secundum  plenam  domini  regis 
donationem  ct  domini  archiepiscopi  plenam  institutioncm,  plenam 
petimus  possessionem,  ad  majorem  parati  probationem,  si  forte  jam 
edita  videatur  minus  sufficiens ;  abbati  et  monachis,  plena  possessione 
suscepta,  si  quid  qutestionis  adversum  nos  habuerint  respjonsuri,  ct 
secundum  juris  ordincm  satisfacturi." 

Stupcfactus  ad  ha^c  abbas  plurimum,  stabat  e.xpers  humani 
consilii,  confisus  tamen  de  divino.  Responsurus  ad  proposita,  cum 
eos  quos  credebat  amicos,  ut  ad  consilium  suum  venircnt  benique 
rogaret,  omnes  se  modo  quo  praedictum  est  excusaverunt,  adeo  ut 
nee  unus  omnium  qui  aderant  proster  suos  qui  secum  illo  venerant 
consilium  sibi  vel  auxilium  praistiturus  procederet.  Nemo  enim 
omnium  timorc  domini  regis  et  archiepiscopi  et  Ricardi  de  Luci 
secum  stare  prcesumpsit,  cognito  quod  cos  causa  contingeret. 
Aderat  illic  inter  creteros  magister  "Walerannus  Baioccnsus  archi- 
diaconus,  postmodum  Roffensis  episcopus/  qui  tunc  temporis 
Cantuariensi  archiepiscopo  adhcerens,  illic  collateralis  magistri 
Gerardi  Puella^  -  residebat.  Hie  abbatem  intuens  in  angustiis 
positum,  et  divino  et  creditur  instinctu  pietate  motus,  conversus  ad 
magistrum  Gerardum :  "Magister,"  inquit,  "Gerarde,  sic  omnes 
abbatem  de  Bello  desolatum  relinquemus?  Dei  odium  incurrat, 
qui  ei  in  hac  necessitate  deerit."  Surgensque  et  magistrum  Gerar- 
dum amica  violentia  manu  injecta  post  se  trahens,  "  Eamus,"  inquit, 
"et  abbatis  assistentes  consilio,  ei  in  causa  sua  subveniamus."  Veni- 
entibus  ex  insperato  ambobus  ad  abbatis  consilium,  abbas  jam  erat 
aniniKquior,  et  de  causa  sua  securior.  Non  diu  protracto,  sed 
niaturato  expeditoque  consilio,  redeunt  pariter  ad  judicum  conses- 
sum,  ubi  magister  Gerardus,  agente  magistro  "\\'aleranno,  immo  Deo 
disponente,  procedens  in  spiritu  fortitudinis,  non  regem  veritus,  non 
archiepiscopum  dominum  suum,  non  principes  non  quoslibct  eorum 
fautores,  libera  voce  ccepit  in  hunc  modum  pro  abbate  allegare. 
"  Sicut  ea,"  inquit,  "  quse  canonice  sunt  inchoata,  ut  perfectionem 
obtineant  sunt  promovenda,  sic  qua2  contra  juris  ordinem  perperam 
sunt  attemj)tata,  in  irritum  sunt  revocanda,  aut  in  statum  meliorem 
transformanda.  Allegatum  est  a  parte  adversa,  quod  monasterio 
Belli  pastore  orbato,  totius  monasterii  dispositio  in  manus  domini 
regis  devenerit,  vacantem   interim   ecclesiam  de  Wi  in  fundo  mon- 

'   I182-I184.     lie  was  at  this  time  also  domestic  chaplain  to  Richard,  arch- 
bishop of  Canterbury.  -  "  Vir  eruditissimus  et  litteratissimus." 


362  APPENDIX. 

asterii  sitam  dominus  rex  domino  Oodefrido  de  Luci  contulerit, 
quodque  eum  regia  auctoritate  prresentatum  dominus  noster  Cantua- 
riensis  primum  electus,  postmodum  archiepiscopus,  ad  eandeni 
ecclesiam  susceperit,  et  in  personam  instituerit.  Ad  h?ec  imprimis 
salva  pace  domini  regis  respondemus,  quod  in  rebus  ecclesiasticis 
nihil  juris  obtinet  potestas  secularis.'  Licet  ad  tempus,  in  rebus 
monasterii  pastore  orbati,  visa  fuerit  majestas  regia  pro  potestate  sibi 
juris  aliquid  vendicasse,  nihil  tamen  ad  detrimentum  monasterii 
abbatisve  futuri  de  jure  potuit  vel  debuit  immutare,  alienare,  seu 
aliquatenus  disponere,  sed  abbati  futuro,  resignanda  omnia  in  sua 
integritate,  conservare. 

"  Domini  igitur  regis  super  ecclesia  de  Wi  in  fundo  monasterii  sita 
nulla  debuit  esse  donatio,  quia  vacantis  coenobii  non  tarn  patronus 
quam  custos,  nuUam  in  eo  proprii  juris  obtinuit  possessionem,  nee  de 
jure  alieno  facere  debuit  donationem.  Cum  ergo,  palam  sit  quod  sit 
irrita  donatio,  consequens  omnino  est  ut  etiam  irrita  debeat  esse 
prsesentatio,  quia  qui  non  potuit  dare,  nee  debuit  prresentare.  Prpe- 
sentatus  domino  Cantuariensi  electo  per  cum  dicitur  fuisse  admissus, 
sed  licet  ratione  proecedentium  minus  canonica  fuerit  institutio,  et 
ideo  irrita,  alia  tamen  consideratione  nulla  fuit,  nee  esse  potuit, 
quoniam  electione  archiepiscopi  per  summum  pontificem  nondum 
confirmata,  electus  admittendi  vel  instituendi  non  habuit  potestatem. 
Consecratus  a  domino  papa  archiepiscopus,  et  a  sede  apostolica  in 
plenitudine  potestatis  reversus,  quod  minus  antea  fecerat  dicitur 
solennius  fecisse,  et  episcopali  auctoritate  confirmasse,  sed  nulla  esse 
debuit  vel  potuit  ipsius  confirmatio,  cum  in  ipsius  consecratione  sint 
omnia  a  summo  pontifice  cassata,  qu?e  ante  consecrationem  ejus 
electionis  tempore  ab  ipso  fuerant  instituta.  Cum  igitur  electionis 
tempore  facta  fuerit  prsesentatio  et  prsesentati  institutio,  dum  omnia 
in  consecratione  revocantur  in  irritum,  constat  etiam  quod  quicquid 
circa  prassens  negotium  est  attemptatum  sub  universitate  concluditur, 
unde  et  in  irritum  proculdubio  revocatur.  Quia  enim  respectu 
apostolicas  auctoritatis  modica  aut  nulla  esse  dinoscitur  potestas 
episcopalis,  qua;  ab  excellentiori  dissolvantur,  per  inferioris  ordinis 
gradum  nequivit  accipere  firmitatem.  Totius  itnque  rei  serie  dili- 
gentius  considerata,  dum  omnia  in  juris  ecclesiastici  pra^judicium 
perpetrata  vidcntur,  firmitatis  sua;  non  immcrito  robur  amittunt, 
quoniam  in  ecclesiastica;  soliditatis  radice  non  subsistunt.     Plence 

'  The  editoi- of  Battle  Abbey  Chronicle  (Camden  Soc.  cd.  p.  177)  has  remarked 
that  it  was  a  foreigner  who  m.ade  this  bold  statement. 


CART^.   ET   TLACITA.  363 

institutionis  postulat  pars  aclversa  beneficium  cum  potlus  beneficio 
portionis  privari  meruerit,  ([uod  in  pni^fata  ecclcsia  dc  Wi  nullo 
rationis  titulo  dinoscitur  possidere.  Spoliatuni  est  jure  suo  vacans 
monasterium,  nee  tenentur  injuste  spoliati,  in  jure  suo  respondere 
nisi  primum  restituti,  unde  et  dominus  abbas  de  Bello  pro  mon- 
asterio  suo  agens  juris  sui  petit  restitutionem,  ])Ostmodum  paratus  ad 
exhibendam  justitia;  plenitudinem."  '  Cum  in  hunc  modum  magister 
Gerardus  in  omnium  audientia  perorasset,  et  allegationem  suam 
legum  ac  decretorum  qure  hie  insercre  longum  erat  auctoritatibus 
comprobasset,  jamque  pro  allegatione  partium  ferenda  esset  sententia, 
delegati  judices  baud  dubium  quin  adverse  parti  respectu  potestatis 
deferentes,  sententiam  sub  dissimulatione  reliquerunt,  et  partibus  ut 
componerent  pra;ceperant.' 


No.  4.] 

LETTRE   SANS   DATE.^ 

Venerabilibus  patribus  ac  dominis  Thome  Cantuariensi  et  Hen- 
rico Eboracensi  archiepiscopis  eorumque  suffragantibus  et  ceteris 
omnibus  sancte  ecclesie  prelatis  per  AngHam  constitutis  Hugo 
Rothomagensis  ecclesie  humiHs  presbiter,  salutem  et  graciam. 
Sciant  tam  presentes  quam  futuri  quod  venerabiles  fratres  nostros 
Philippus  Baiocensis  et  Jocelinus  Salesberiensis/  episcopi,  in  nostra 
presentia  et  episcoporum  et  personarum  plurium  qui  affuerunt  de 

'  With  this  agrees  Peter  of  Blois,  ante,  p.  222. 

-  The  advice  of  the  judges  was  accepted,  and  the  terms  of  the  compromise 
follow  in  the  chronicle. 

3  I  Cart,  de  la  Basse-Normandie,  \>.  50.  From  MS.  Cart.  Eccl.  Baiocensis, 
No.  46.  The  Cart,  de  la  Basse-Norm,  is  a  collection  of  ancient  records  made  in 
1825  by  M.  Lechaudc  d'Anisy.  It  consists  of  three  MS.  volumes,  and  lies  in  the 
Public  Record  Office,  London.  The  originals  are  indicated.  The  full  title  of  the 
cartulary  is  as  follows  : — "  Cartulaire  de  la  Basse-Normandie  ou  copie  des  chartres 
@  autres  actes,  concernant  les  biens  @  privileges  concedes  en  Angleterre  a  diverses 
maisons  religieuses.  Accompagnee  des  sceaux  et  contre-sceaux  Anglo-Normands 
qui  etaient  encore  appendus  a  ces  mcmes  actes.  Par  Lechaude  d'Anisy,  Membre 
de  plusieurs  Societes  Savantes  et  Correspondnt.  de  la  Commission  des  Archives 
d'Angleterre.  Caen.  M.  dccc.  xxv."  (The  charters  have  never  before  been 
printed.) 

"•  Jocelin  de  Bohun,  archdeacon  of  Winchester,  was  consecrated  bishop  ol 
Salisbury  in  1 142  (Annal.  Margan. ).  He  resigned  his  bishopric  in  1 184,  and 
assumed  the  Cistercian  habit ;  and  he  died  i8tli  Nov.  in  that  year  (xiiii  Kal. 
Decemb.  Obituar.  Cantuar. ).     Le  Neve's  Fasti,  1854,  vol.  ii.  p.  595. 


364  APPENDIX. 

controversia  que  erat  inter  eos  pro  quibusdam  absportatis  de 
thesauro  Salisberiensis  ecclesie  concordassc  tali  conditione  quod 
prefatus  Philippus  Baiocensis  episcopus  per  manum  Nigelli  monachi 
de  Cadumo  et  per  Albertum  portarium  de  Harecuria  in  presentia 
nostra,  Rothomago  reddidit  eodem  Jocelino  Salesberiensi  episcopo 
bracium  unum  aureis  laminis  coopertum  et  lapidibus  pretiosis 
adornatum.  Et  insuper  dedit  ei  x.  marcas  argenti.  Et  sic,  querela 
que  erat  inter  cos  omnino  remansit.  Huic  autem  compositioni  inter- 
fuerunt  de  personis  Salesberiensis  ecclesie  Henricus  cantor,  Rogerus 
et  Henricus  archidiaconi  et  magister  Robertus  de  Cicestro  qui  vice 
totius  capituli  sui  concessionem  istam  concesserunt  et  approbave- 
runt ;  ex  parte  auteni  Philippi  Baiocensis  episcopi  affuerunt  magister 
Humfridus  Herbertus  cantor  Baiocensis,  Willelmus  thesaurarius, 
Willelmus  de  Leone,  Robertus  subdecanus,  Sylvester  succentor, 
Johannes  Lexoviensis  archidiaconus,  Ricardus  thesaurarius,  Willelmus 
prior  de  Sancta  Barbara,  Guillebcrtus  prior  de  Ardena,  Nicholaus 
prior  de  Plausiciaco.  Actum  est  hoc  Remis  presentibus  pluribus 
episcopis,  archidiaconis  et  multis  aliis  canonicis  et  clericis. 


No.  5.] 

ASSISES  DE  L'AN  ii76.' 

Ricardus  Dei  gratia  Vintoniensis  episcopus,  Simon  de  Tournebu, 
Robertus  Marmion  et  Willelmus  de  Glanvilla,  universis  sanct?e 
matris  ecclesie,  salutem.  Noverit  universitas  vestra  quod  cum  apud 
Cadomum  essemus  in  assisia,  Robertus  presbiter  de  Surrehein, 
coram  nobis  recognovit  in  ipsa  assisia  quod  Villelmus  decanus 
Baiocensis  donaverat  ei  etc.,  duas  partes  ecclesie  de  Surrehein  etc.  etc. 
La  meme  de'claration  fut  faite  par  Philippe  de  Than.  Hec  autem 
assisa  fuit  anno  ab  incarnatione  Domini  M°-  C°  L°-  XXVI°-  mense 
Januarii.  Et  in  ea  fuerunt  Henricus  Baiocensis,  Arnulfus  Lex- 
oviensis et  Ricardus  Constansiensis,  episcopi,  Stephanus  abbas  Sancti 
Severi,  Ricardus  de  Humeto,  lordanus  Taisson,  Fulcho  Paganellus, 
Willelmus  de  Eerrariis,  Willelmus  de  Solers,  Rogcrius  de  Arry,  Hamo 
Pincerna,  Ranulfus  dc  Grandivalle,  Jordanus  de  Landa,  vSymon  de 
Tenehebraia,  Robertus  de  Agnellis,  etc.,  et  multi  alii. 

'  I  Cart,  dc  la  Basse-Norm.  j).  50.     Cart.  Eccl.  Baiocensis,  No.  47. 


CART/E    ET   PLACITA.  365 

No.  6.] 

PLAIDS   ROYAUX   VERS   L'ANNEE    1076.' 

Quia  mcmoria  hominum  sicut  homines  cito  pcrlransit,  quedam 
facta  corum  que  cum  memoria  fugiunt  necesse  est  scribendo  retineri. 
Unde  nos  huic  ecclesie  providentes  (juod  volumus  succcssorcs  nostros 
nescire,  carte  huic  decrevimus  inserere.  Contigit  itaque  cuidam 
festivitate  Sancti  Leonardi  comitem  Rogerium  intercsse  et  cum  eo 
nonullos  utriusque  ordinis  non  mediocris  fame  quos  ipse  invitaverat 
ad  sui  honorem  ct  huic  ecclesie  exaltationem.  Ex  quibus  Sagiensis 
pontifex  Robertus,  ca  die  nostro  et  comitis  hortatu  missam  cantavit. 
Cujus  etiam  misse  offerturam  sibi  per  cupiditatcm  retinere  temptavit. 
Quod  nos  videntes  et  velut  monstrum  exhorrentes,  a  quodam  ejus 
clerico,  cui  eam  reservandam  commiscrat,  vi  et  non  sine  contumelia 
offerturam  illam  reccpimus.  Iratus  propter  hoc  ejiiscopus  ecclesiam 
et  nos  excommunicare  se  dixit.  Quo  facto,  prius  clamorem  quam 
fecit  comes  Rogerus,  de  Sagiensi  episcopo  ad  Johannem  Rothomag- 
ensem  archiepiscopum  die  constituta  exinde  placitaturi  devenimus 
Rothomagum.  Ibi  in  pahitio  et  in  presentia  regis  et  regine  Anglorum, 
comes  Rogerus  conquestus  est  super  Sagiensi  episcopo  quod  ecclesiam 
Sancti  Leonardi  sine  causa  excommunicare  presumpsisset.  At  contra 
episcopus  nos  inculpabat,  quod  manum  quam  sanam  et  intcgram  habu- 
isset  habendo  offcrturas  per  totum  episcopatum  suum,  nos  ei  accidis- 
semus  auferendo  ab  eo  nostram  offerturam.  Ad  hcc  rex  et  regina  scitati 
sunt  a  comite  Rogero  de  statu  ipsius  ecclesie.  Comes  vero  et  nos  qui 
aderamus  dilucide  enarravimus  quomodo  Guillelmo  deBelissimo  supra- 
dictam  ecclesiam  ob  peccatorum  suorumveniam  edificasset  et  quomodo 
eam  ex  precepto  beate  memorie  pape  Leonis  liberam  et  solutam  fecisset 
et  quod  a  die  dedicationis  ejusdem  archiepiscopus  sive  episcopus 
nullam  in  ea  consuetudinem  habuisset,  ncc  eam  ullo  modo  excom- 
municare potuisset.  Affuerunt  etiam  antiquissimi  homines  qui  hec 
viderant  ct  audierant,  parati  probare  secundum  judicium  regis  quod 
nos  edisseramus.  His  auditis  rex  et  regina  jusserunt  Johannem 
archiepiscopum  et  Rogerum  de  Bello-Monte  et  i)lurcs  alios  barones 
ut  secundum  quod  audierunt  faccrent  inde  judicium.  Et  illi  abito 
consilio,  judicaverunt  ecclesiam  que  tanta  auctoritate  et  tut  tanto- 
cunque  procerum  confirmatione  liberata  esset  et  tam  longo  tempore 
in  liberalitate  perseverassct,  debere  deinceps  in  perpctuum  sic  per- 
manere.     Episcopum    injuriam    fecisse    non  solum  comiti  Rogerio, 

'  I  Carl,  de  la  Ua.s.-;o-Noim.  p.  80.     Aiclilvcs  d'Alcncon,  No.  3. 


366  APPENDIX. 

verum  etiam  regi  de  quo  ipse  ecclesiam  tenebat.  Dixit  etiam 
Johannes  archiepiscopus  quasdam  ecclesias  in  diocesi  sua  esse  in 
quibus  ipse  nullam  oninino  consuetudinem  haberet.  Hoc  pacto 
Sagiensis  episcopus  Robertus  emendavit  rectum  faciendo  regi  et 
comiti  Rogerio  injuriani  quam  eis  fecerat  predictam  ecclesiam  inva- 
dendo  ;  diffinitum  est  etiam  ibi  ut  si  archiepiscopus  sive  episcopus 
eam  amplius  inquietare  presumeret,  apostoHca  et  regia  auctoritate 
a  consortio  fidelium  usque  ad  satisfactionem  alienus  existeret. 
Hoc  viderunt  Guillehnus  rex  et  Mathildis  regina,  Johannes  Rothoma- 
gensis  archiepiscopus,  Robertus  Sagiensis  episcopus,  comes  Rogerius, 
Robertus  de  Belissimo,  Rogerius  de  Bello-Monte,  Warinus  Curvisus, 
Guillehnus  et  Hascuinus,  canonici,  Amellandus  et  multi  alii. 

No.  7.]      PLAID  ET  TRANSACTION  EN  PRESENCE  DE 
HENRY  I"  EN  11 26  et  1127.' 

Debats  judiciaire  au  sujet  d'un  differend  porte  en  la  Cour  du 
Roi,  par  les  religieux  de  Marmoutier  contre  Jean  eveque  de  Siez 
pour  I'investiture  de  quelques  eglises  situe'es  dans  le  territoire  de 
Belesme,  qui  n'est  remarquable  que  par  le  nombre  de  te'moins  pre'sens 
a  cet  acte.  II  se  termine  ainsi  :  Actum  in  presentia  domini  Henrici 
regis  Anglorum  apud  Sanctam  Gaubergem  prope  Rothomagum  et  ab 
episcopo  ipso  Sagiensi  domno  Johanne  concessum.  Presentibus  istis 
Gaufrido  Rothomagensi  archiepiscopo  Eudo  et  Bernardo  episcopis, 
Gaufrido  regis  cancellario,  Galeranno  archidiacono,  Roberto  de 
Sigillo,  de  laicis,  Roberto  de  Haia,  Grimaldo  medico,  Roberto  de 
Dangu,  Roberto  de  Chandos,  Rogero  fratre  ejus,  Hugone  de 
Braitello,  etc.  De  nostris  (Douze  temoins).  De  clericis  (Sept  te'moins). 
De  famulis  (Quatre  temoins)  et  pluribus  aliis. 

Quant  a  la  transaction  qui  eut  lieu  entre  les  parties  au  sujet  du 
proces  ci-dessus,  elle  n'offre  d'autre  particularite  qu'une  note  histo- 
rique  jointe  a  la  signature  du  roi  Henry,  qui  est  elle-meme  renfermee 
dans  un  orbe  ou  un  cercle  dentelee.  Cette  transaction  se  termine 
ainsi :  Data  Sagii  anno  ab  incarnatione  Domini  M°.  C°.  xxvii 
indictione  vi.  regnante  Ludovico  rege  Francorum,  duce  autem  Nor- 
mannorum  Henrico  rege  Anglorum,  presidente  Rothomagensis 
ecclesie  Gaufrido  archiepiscopo. 
Signum 

Henrici  Quando  dedit  tiHam  suam  Gaufrido 

Regis  comiti  Andegavensi  Juniori. 

Angloru. 
'  I  Cart,  de  la  Basse-Norm.  p.  84.     Arch.  d'Alen9on,  No?.  8,  9. 


CART^   ET   PLACITA.  367 


No.  8.]  BREF  DE  HENRY   II.     (Sans  date.)- 

Henricus,  etc.,  constabulario  ct  ballivis  suis  de  Cesarisburgo, 
salutem.  Precipio  vobis  quod  sine  dilatione  plenum  rectum  tencatis 
priori  et  canonicis  Sancte  Marie  de  Voto  juxta  Cesarisburgum  de 
terra  que  fuit  Preisie  apud  Cesarisburgum  et  de  domo  quam  ipsa  eis 
dedit  quas  Willelmus  Pichardus  et  uxor  Richeris,  eis  difforciant,  nisi 
sit  feodum  Lorice  vel  burgagium  quod  valeat  plusquam  c.  solidos 
per  annum.  Et  nisi  feceritis,  justicia  mea  Normannie  faciat.  Teste 
Hugone  Bardulf  dapifero  apud  Bonam  Viilam. 


No.  9.]  BREF   DE   HENRY   II.     (Sans  date.)' 

Henricus,  etc.  Notuni  sit  vobis  quod  in  tempore  meo  et  Algaro 
Constanciensis  episcopo  fuit  juramento  comprobatum  per  meum 
preceptum  in  assisia  mea  apud  Valonias  quod.  .  .  .  filius  Nigelli  et 
omnes  successores  sui,  ab  Algaro  Constancinsi  et  ab  aliis  predeces- 
soribus  suis  Constanciensi  episcopis  tenuerant  quicquid  in  ecclesiis 
de  cesarisburgo  et  de  Torlavilla  et  in  omnibus  possessionibus  ad 
illas  ecclesias  pertinentes  habuerant.  Hec  vero  juraverunt  Ricardus 
de  Wanvilla,  Willelmus  monachus,  Willelmus  de  Sancto  Germano, 
Willelmus  de  Briquevilla,  Ricardus  de  Martimvast,  Robertas  de 
Valoniis.  Quare  ego  concedo  quod  hoc  secundum  illorum  juramen- 
tum  ratum  sit  et  in  perpetuo  teneatur.  Testes  vero  hujus  conces- 
sionis  sunt  Ricardus  cancellarius,  Willelmus  de  Vernon,  Engelranus 
de  Bohon,  Alexander  de  Bohon,  Jordanus  Taisson,  etc.,  apud  Sanctum 
Laudum. 

No.  10.]  LETTRE   DE  HENRY  11.^ 

Henricus,  etc.  Precipio  vobis  quod  custodiatis  et  manuteneatis 
et  protegatis  omnes  res  et  possessiones  canonicorum  Constanciensium 
et  communiam  ecclesie  Constansiensis.  Ita  quod  non  permittatis  eis 
injuriam  unquam  fieri  vel  contumeliam ;  sed  facialis  eis  habere  con- 

"   I  Cart,  de  la  Basse-Norm.  p.  104.     Arch,  de  St.  Lo,  No.  10. 
-  lb.  p.  129.     Cartulaire  ou  Livre  Blanc  de  I'Eveche  de  Coutances,  fol.  350, 
No.  14. 

3  lb.    Livre  Blanc  de  I'Eveche  de  Cout,  fol.  351,  No.  15. 


368  APPENDIX, 

suetudines  et  rectitudines  snas  quas  habere  debent  et  habere  solebant 
et  precipue  nundinas  in  dicto  comite  quas  pater  meus  dedis  eis  et 
concessit  cum  omnibus  pertinentus  suis  et  rectitudinibus  sicut  eis 
dedit  in  bona  pace,  et  integre  habere  faciatis,  non  permittentes  illis 
inde  in  uUo  fore  forisfieri.  Et  si  quis  super  hoc  injuriam  eis  aut 
molestiam  intulerit,  sine  dilatione  idcirco  eis  faciatis  emendari, 
Teste  Johanne'  decano  Saresbery  apud  Valonias. 

No.  II.] 

CHARTE   CONFIRMATIVE.     (Sans  date.)  ^ 

Henricus  rex  AngHe,  dux  Normannie  et  Aquitanie  et  conies 
Andegavensis,  archiepiscopis,  episcopis,  abbatibus,  comitibus,  baron- 
ibus,  justiciis,  vicecomitibus,  ministris,  et  omnibus  fidehbus  suis 
totius  AngUe  et  Normannie,  sahitem.  Sciatis  me  concessisse  et  con- 
fiamasse  Deo  et  Sancto  Stephano  de  Cadomo  et  monachis  ibidem 
Deo  servientibus  pro  salute  anime  mee,  patris,  ac  matris,  uxoris, 
fihorum  ac  parentum  meorum  et  antecessorum  quicquid  rex  Willehiius 
proavus  meus  vel  rex  Henricus  avus  meus  ecclesie  predicte  dederunt 
et  concesserunt  sicut  carte  illorum  testantur,  etc.  .  .   . 

3  Concedo  etiam  sicut  concessit  prefatus  Odo,  ut  ex  ipsis  crimi- 
naUbus  peccatis  quandocunque  in  prefatis  ecclesiis  domibus,  terris, 
audiri  contigerit  ab  archidiacono  Baiocensi ;  abbas  vel  prior  predicte 
cenobii  non  ipse  super  quo  crimine  auditum  fuerit  moneatur  et 
ibidem  ab  utroque  disposito  termino  congruo  ac  prefixo  die  con- 
veniant  monachi  et  archidiaconus  et  in  ipsa  parrochia  in  qua  crimen 
auditum  fuerit  predictis  presentibus  incjuiratur  inquisitio  discutiatur 
et  discussiosi  inde  judicium  portandum  prodierit  vel  cognitio  peccati 
patuerit  Baiocensis  ecclesie  ut  decet  rcquiratur  vel  causa  examina- 
tionis  vel  gratia  consequende  reconciliationis,  etc.  .  .  . 

**  Homines  de  Siccavilla  recepti  in  societate  monasterii  Sancti 
Stephani  dederunt  eidem  sancto  duas  partes  decimarum  suarum. 
Hujus  autem  ville  ecclesiam,  quam  Sanctus  Stephanus  anliquiter  in 
magna  pace  tenerat  Hebertus  quidam  clericus  ei  modis  quibus- 
cumque  poterit  auferre  qucrens  abbatem  et  monachos  inde  diu 
fortiter   vcxari.     Quorum  vcxatione    Henricus  rex  finem  imponere 

'  Tohn  of  Oxfurd  was  dean  of  Sarum  in  1165  :  he  was  made  bishop  of  Norwich 
in  II 75. 

-  I  Cart,  de  la  Basse-Norm.  p.  154.     Arch,  de  Calvados,  No.  9. 

3  r.  163.  ■'  r.  174. 


CARTyE    ET   PLACITA.  369 

decerncns  utrisqite  ante  sc  in  castello  Cadomi  diem  constitcrit 
placitandi.  Die  igitur  quo  constituto  abbas  et  monachi  cum 
omnibus  qui  eis  necessaria  erant  ipsi  regi  et  justicie  suum  placitum 
obtulerunt;  Heberto  autem  ibi  in  audicntia  regis  et  totius  justicie 
necnon  et  baronum  deficiente  de  prefata  ecclesia  ipsius  regis  et 
justicie  judicio  Sanctus  Stephanus  saisitus  remansit,  ncmini  deinceps 
amplius  inde  responsurus,  Rogerius  filius  Petri  de  Fontaneto  in 
presentia  totius  justicie  reddidit  Sancto  Stephano  terram  illam  et 
omnes  decimas  quas  ipse  sanctus  a  Godefrido  avo  illius  et  a  patre 
suo  habuerat,  easque  eidem  sancto  deinceps  firmiter  imperpetuum 
tenendas  concessit.  Hubertus  filius  Serlo  dedit  Sancto  Stephano 
capitalem  domum  suam  et  aliam  juxta  illam  que  erat  duarum 
stationum  in  Calheola  ea  conditione  habita  quod  uxor  sua  Gisla  et 
heredes  ejus  haberent  easdem  domos  a  monachis  pro  x.  solidis 
per  annum.  Et  preter  hoc  dedit  terram  illam  que  erat  inter 
predictas  domos  et  murum  usque  ad  quarrariam.  Concedo  con- 
cordiam  abbatis  et  Ricardi  filii  Eddite  factam  apud  Londonem. 
Concedo  concordiam  factam  inter  monachos  Sancti  Stephani  et 
ministros  regis  de  terra  de  Brideport  et  de  Bridetona.' 

Hec  omnia  prescripta  precedente  ecclesie  Sancti  Stephani  et 
monachis  ibidem  Deo  servicntibus  concedo  et  confirmo  habenda  et 
tenenda  in  perpeluam  elemosinam  libere  quiete  sicut  carte  regis 
Willelmi  et  regis  Henrici  avi  mei  eis  confirmant  et  testantur.  Et 
quecunque  hie  prescripta  sunt  que  rationabiiiter  adquisiverunt  et  que 
eis  rationabiiiter  data  sunt  temporibus  antecessorum  meorum  et  meo. 
Testibus  Rothroco  Ebroicensi  episcopo  justiciario  Normannie, 
Philippo  Baiocensi  episcopo,  Arnulfo  Lexoviensi  episcopo,  Thome 
cancellario,  Gaufrido  Ridello,  Gaufrido  capellano,  Willelmo  filio 
Johanne,  Godart  de  Vaus,  Jordano  Taixun,  Ricardo  de  Haia  apud 
Cadomum. 


No.  12.] 


BREF  DE  HENRY  II.     (Sans  date.)= 


Henricus,    etc.      Precipio    quod  monachi   Sancti   Stephani   de 

Cadomo   teneant   bene   et    in   pace  et  quiete  quietancias  suas  et 

'  Comp.  riacita  Ang.-Norm.  120. 

-  I  Cavt.  de  la  Basse-Norm.  p.  177.  Aich.  de  Calvados,  No.  11. 


370 


APPENDIX. 


domos  et  redditus  de  Rothomago  et  de  Abracense  et  de  Diva  scuti 
carta  Robert!  de  Novoburgo  testatur  quod  disraciocinaverunt  eas  in 
curia  mea  coram  eo  et  baronibus  meis  agud  Cadomum,  teneant 
easdem  quietancias  et  domos  et  alias  res  sicut  carta  Ebroicensis 
episcopi  testatur  quod  disraciocinant  in  curia  mea.  Et  ulli  eis  nihil 
faciat  injuriam  aliquam  et  contumeliam.  Testibus  Philippo  Baiocensi 
episcopo  pro  Rogero  de  Warenne.     Apud  Cadomum. 


No.  13.] 

ACTE  CHIROGRAPHE  PORTANT  LES  MOTS  ''  LITIS 
DIVISIO"  EN  IT7I.' 

Sciant  omnes,  etc.,  quod  anno  ab  incarnatione  Domini  M"  C 
LXXI"  Willelmus  de  Abovilla  concedente  Henrico  filio  primogenito 
suo  pro  Deo  et  salute  anime  sue  et  antecessorum  suorum  dedit  in 
perpetuam  elemosinam  cenobio  Sancti  Stephani  Cadomi  et  monachis 
ibidem  Deo  servientibus  quicquid  juris  habebat  in  presentatione  et 
elemosine  ecclesie  de  Bretteville  orgoillose  et  capelle  de  Putot  et  illam 
donationem  super  altare  beati  Stephani  posuit ;  et  fide  corporaliter- 
prestita  super  sanctum  evangelium  juravit  se  nuncjuam  ulterius  super 
hac  donatione  facturum  aliquam  calumpniam  abbati  et  monachis 
Cadomi  sed  ubique  et  contra  omnes  homines  idem  Willelmus  absque 
suaexpensa  mittenda  illam  in  proposse  suogarantizabitet  pro  donatione 
predicta  dedit  Willelmus  abbas  et  monachi  predicto  Willelmo  xxx. 
libras  Andegavensas.  Hec  autem  facta  sunt  coram  domino  rege 
Henrico,  presentibus  episcopis  Arnulfo  Luxoviensi,  Frogerio  Sagiensi, 
Goscelino  Saresberiensi,  et  presentibus  justiciis  regis  Willelmo  de 
Sancto  Johanne  et  Willelmo  de  Corceio  presente  etiam  Thoma 
archidiacono  Baiocensi  qui  in  loco  domini  Henrici  Baiocensis  episcopi 
interfuit  et  proprio  sigillo  supradicta  confirmavit.  Testibus  etiam 
Herberto  precentore,  Galerano  archidiacono,  et  Rogerio  de  Arrie  et 
Johanne  archidiacono  Sagiensi,  et  Johanne  archidiacono  Luxoviensi 
et  aliis  Willelmo  de  Glainvilla  Willelmo  de  Humeto,  Ricardo  filio 
comitis,  Willelmo  Crasso,  Ranulfo  de  Grandval,  Roberto  de  Vein 
et  Willelmo  fratre  suo  et  Roberto  de  Aniscio. 

'  I  Call,  de  la  Basse-Noini.  p.  179.     Arch,  de  Calvados,  No.  15. 
'■'  Comp.  aiitt',  \)\).  115,  121,  122. 


CART^.   ET   PLACITA.  371 

No.  14.]  LETTRE  OU  BREF.     (Sans  date.)' 

Rotrodus  Dei  gratia  Rothomagensis  archiepiscopus  karissimo 
amico  Willelmo  de  Corceio  salutem,  graciam  et  bcnedictionem. 
Eaque  a  domino  nostro  rcge  concessa  sunt  et  carta  sua  confirmata  a 
ministris  suis  debent  inviolabiliter  observari  unde  plurimum  miramus 
quod  carissimos  filios  nostros  a  domino  rege  plurimum  dilectos 
abbatem  ct  monachos  Sancti  Stephani  de  Cadomo  patimini  trahi  in 
causam  a  Willelmo  de  Abovilla  super  ecclesia  eoruni  de  Brcttevilla 
orguillosa  cujus  advocationis  et  presentationis  jus  a  domino  nostro 
rege  eis  est  concessum  et  carta  sua  confirmatum  et  pluribus  aliis 
cartis  unde  nobis  consulimus  et  ex  parte  domini  regis  et  nostra  per- 
cipiendo  mandamus  quatinus  eos  in  libera  et  quieta  possessione 
dimittatis  nee  patiamini  trahi  in  placitum  sive  in  quamlibet  causam 
usque  adventum  domini  regis.     Valete. 

No.  15.] 

CHARTE  CONFIRMATIVE  DE  RICHARD  I.    (Circa  1189.)  = 

Ricardus  rex,  etc.  Sciatis  nos  concessisse  et  hac  presenti  carta 
nostra  confirmasse  ecclesie  Sancti  Stephani  de  Cadomo  et  monachis 

ibidem  Deo  servientibus,  etc '  Concedimus  preterea  concor- 

diam  factam  coram  Henrico  rege  patre  nostro  inter  abbatem  Cado- 
mensem  et  Ricardum  filium  Johannis  apud  Burum  de  ecclesia  de 
Condeto  scilicet  quod  idem  Ricardus  dimisit  Sancto  Stephano  omnem 
calumniam  quam  facibeat  contra  abbatem  de  predicta  ecclesia  et 
quicquid  juris  in  ea  se  habere  dicebat,  eidem  sancto  in  elemosinam 
dedit  et  concessit  ea  conditione  quod  monachi  reciperent  fratrem 
ipsius  Ricardum  majorem  ad  religionis  habitum.     Confirmamus,  etc. 

Concedimus  etiam  concordiam  factam  inter  abbatem  Cadomi 

et  Gislebertum  Botin  et  filios  ejus  qui  dimiserunt  calamniam  quam 
faciebant  contra  Sanctum  Stephanum  de  Vinea  de  Wiborel  et  eam 

abjuraverunt  receptis  ab  abbate  xxx.  solid.      Concedimus,  etc 

••Concedimus  et  confirmamus  Sancto  Stephano  emptiones  et  recupera- 
tiones  quas  fecit  abbas  Willelmus  in  tempore  Henrici  regis  patris  nostri 

'  Placed  before    1189  in  the  volume.      i   Cart,  de  la  Basse-Norm.  p.    180. 
"  De  ma  collection"  (i.e.  Lechaude's),  No.  16.     See  preceding  case. 
=  I  Cart,  de  la  Basse-Norm.  p.  182.     Arch,  de  Calvados,  No.  20. 
3  P.  184.  4  p.  188. 

2   B   2 


372  APPENDIX. 

necnon  et  commutatlones  et  concordias '  Recuperavit  idem 

super  Johannem  filium  Warini  unam  in  quarreria  quam  idem  Johannes 

injuste  occupaverat Fecit  idem  abbas  quod  Ranulfus  Ben- 

dengel  forisjuravit  calumniam  quam  mittebat  in  cultura  Fameleia. 

Recuperavit  idem  super  Hasculf  de  Solenmis  et  uxorem 

ejus  unam  salinam  datis  eis  centum  solidis  Andegavensibus  et  super 
Gaufridum  de  Castello  ecclesiam  Sancti  Nicholai  de  bosco  Balduini, 
dato  ei  uno  palefrido.  Recuperavit  idem  unum  pratum  apud  Agvillam 
super  WiUelmum  Germanum  et  terram  Eschelini  super  comitem 
Glocestrie.  Et  super  Julianam  de  Vacceio  terram  super  montem  de 
Berolis  et  apud  Bogium  masuras  super  Johannem  Sailulta  et  apud 
Brachevillam  unum  villenagium  super  Gaufridum  comitem  de 
Mandevilla  datis  ei  decem  Hbris.  Recuperavit,  etc "  Recu- 
peravit idem  super  Robertum  de  Vein  in  curia  Henrici  regis  patris 
nostri  apud  Cadomum,  hereditagium  quod  idem  Robertus  clamabat 
in  tenendo  manerio  de  Vein  de  Sancto  Leone.  Et  super  Robertum 
de  Brienc  ecclesiam  Sancti  Audoeni  de  Vilers  de  qua  monachos 
violenter  dissaisierat ;  set  judicio  baronum  qui  erant  ad  scaccarium  ^ 
apud  Cadomum  adjudicata  est  ecclesia  predicta  Sancto  Stephano  et 

restituta ''  Recognitum    etiam    fuit    in    plena   assisia   apud 

Abrincas  quod  homines  abbatis  Cadomi  de  manerio  de  Vein  quiet- 
anciam  suam  habent  de  omnibus  rebus  vcnditis,  emptis,  in  Abrincis 

excepto  die  mercati Recognitum  ctiam  fuit  coram  Rothrod 

Ebroicensi  cpiscopo  dapifero  Normannie  quod  Willelmus  filius 
Gerowart  et  Rogerus  filius  Henrici  et  Robertus  filius  Gislemi  debent 
reddere  consuetudines  de  domibus  quas  habent  in  burgo  Sancti 
Stephani.  Et  domos  Hugonis  Fabri  esse  consuetudinarias  excepta 
una.  Et  domos  Radulfi  Vituli  nisi  carta  regis  AVillelmi  testaretur 
unam  esse  ciuietam.  Et  domos  servientium  de  Vilers  esse  consue- 
tudinarias nisi  quod  unusquisque  habet  unam  quietam.  Et  domos 
pratarii  excepta  una.  Et  domos  facientium  Sotulares  [vel  subtahvcs  5) 
monachorum  esse  consuetudinarias  preter  unam.  Et  est  judicatum 
nullam  quietarum  domorum  habere   nisi  unam   familiam   et  unam 

fenestram.     Et  donationem  quam  fecit,  etc *  Hec  autem 

omnia  prescripta  predicte  ecclesie  Sancti  Stephani  et  monachis 
ibidem    Deo   servientibus    concedimus    et    confirmamus,    etc.    .    . 

'  P.  189.  =  P.  192. 

3  The  use  of  the  Norman  Exchequer  for  the  trial  of  common  pleas  {Icinp. 
Hen.  II.)  will  be  noticed. 

'*  P.  193.  5  Sic.                                  ''  P.  194. 


CARTiE   ET   PLACITA.  2>7i 

.  .  .  Testibus  Waltero  Rothomagensi  archiepiscopo,  W.  Elicnsi 
episcopo,  cancellario  nostro,  Henrico  Baiocensi,  Radulfo  Lexovensi, 
Willclmo  Constanciensi,  Johanne  Ebroicensi,  episcopis,  Willelmo  de 
Humeto  constabulario,  Willelmo  filio  Radulfi  senescallo  Normannie. 
Datum  per  manum  Johamiis  de  Alen9one  Lexoviensis  archidiaconi, 
vicecancellarii  nostri,  apud  Rothomagum  xx.  die  Martii  regni  nostri 
anno  primo. 


No.  i6.] 

ACCORD  FAIT  PAR  L'EVEQUE  DE  WORCESTRE  EN  1174.' 


R.  Dei  gratia  Wigornensis  episcopus  universis  sancti  matris 
ecclesie  filiis,  salutem.  Omnium  cognitioni  notum  esse  volumus 
quod  controversia  per  Walterum  clericum  de  Haseltona  adversus 
monachos  Sancti  Ebrulfi  mota  super  ecclesiam  de  Rawella  et  nobis 
a  domino  papa  Alexandro  delegata  quam  idem  Walterus  in  sub- 
jectione  ecclesie  sue  de  Hallinghis  sibi  petebat,  banc  finem  coram 
nobis  sortita  est.  Ecclesia  de  Rawella,  ecclesie  de  Hallinghis  vigilia 
Pasche  unam  libram  incensi  persolveret  in persolvcrd''  in  perpetuum. 
Ita  quod  ecclesia  de  Hallinghis  ab  ecclesia  de  Rawella  nichil  amplius 
poterit  exigere ;  et  monachi  predicti  Waltero  clerico  in  recompen- 
sationem  laboris  et  expensis  sex  solidos  de  redditu  suo  de  Rawella 
per  manum  procuratoris  sui  quamdiu  Walterius  vixerit  duobus  terminis 
in  Pascha  videlicet  et  in  festo  Sancti  Michaelis  annuatim  persolverent. 
Abbas  autem  et  conventus  Sancti  Ebrulfi  litteris  suis  nobis  transmissis, 
se  ratum  habituros  insinuaverunt  quicquid  Ricardus  monachus  eorum 
in  Anglia  generalis  procurator  existens  in  presentia  nostra  judicio  vel 
compositione^  susciperet.  Hanc  conventionem  se  servaturos  con- 
firmaverunt  hinc  inde,  Ricardus  scilicet  monachus  in  verbo  veritatis 
et  Walterius  clericus  fide  data  in  manu  nostra.  Facta  est  autem  hec 
conventioanno  ab  incarnatione  Domini  ]M°'  C°-  LXHH"-.  His  testibus 
Adam  abbate  Evesham,  Roberto  priore  de  Kenilleworda,  Symone 
archidiacono  Wigornensi  magistro  Moysc,  magistro  Waltero,  magistro 
Silvestro,  Gilberto  capellano,  Samsone  clerico. 

»  I  Cart,  dc  la  Basse-Norm.  p.  243.     Arch.  d'Alen^on,  No.  48. 
-  Sic.  3  Compo/t'tione  in  the  transcript. 


374  APPENDIX. 

No.  17.] 

ACTE  CHIROGRAPHE  ENTRE  L'ABBE  DE  MONTEBOURG 

ET  CELUI  DE  ST.  SAUVEUR  LE  VICOMTE  EN   1147/ 

Notum  sit  omnibus  presentibus  et  futuris  quod  queremonia  que 
inter  abbatiam  Sancti  Salvatoris  et  abbatiam  Sancte  Marie  Montisburgi. 
.  ,  .  .  erat  de  ecclesia  Sancti  Petri  de  Fontaneto  juxtavada,  terminata 
atque  diffinita  est  anno  ab  incarnatione  Domini  M°  C-  quadra- 
gesinio  VIP-  hoc  modo.  In  presentia  venerandi  Algari  Dei  gratia 
Constantiensis  episcopi  et  Gisleberti  archidiaconi  et  Radulfi  archi- 
diaconi  constitutum  atque  sancitum  est  concessu  Ricardi  de  Walvilla 
et  Leonis  fratris  ejus,  ut  compositio  quedam  ex  supradicta  ecclesia 
Sancti  Petri  cum  omnibus  decimis  et  elemosinis  eidem  pertinentibus 
sit  talis  inter  duas  abbatias.  Scilicet  ut  domnus  abbas  Sancte  Marie 
Montisburgi  omnisque  conventus  ejusdem  loci  amodo  perpetualiter  et 
pacifice  medietatem  totius  predicte  ecclesie  et  medietatem  cymiterii 
omniumque  decimarum  et  terre  elemosine  et  decime  pomerii  Leonis 
possideant.  Alteram  vero  medietatem  ipsius  ecclesie,  cymiterii, 
omnium  decimarum  terre,  elemosine  decime  pomerii  Leonis  similiter 
domnus  abbas  Sancti  Salvatoris  et  conventus  ejusdem  loci  perpetu- 
aliter et  pacifice  possideant.  Hujus  conventionis  extitit  auctor  ex 
parte  abbatie  Sancte  Marie  Montisburgi  domnus  abbas  Galterus,  cum 
priore  suo  Ricardo  de  Gaurey  et  Guarino  sub-priore,  Roberto  cellario, 
Roberto  de  Jugarvilla,  Hervio  monachis.  Ex  parte  abbatie  Sancti 
Salvatoris  fuit  auctor  domnus  abbas  Hugo  cum  priore  suo  Gaufrido, 
Petro  sub-priore,  Roberto  de  Flotemanvilla,  Roberto  de  Alna,  Roberto 
de  Landa.  Testes  laici  sunt  hii  Ricardus  de  Walvilla,  Leo  frater  ejus 
domini  hujus  elemosine  Jordanus  de  Barneville,  Ricardus  de  Haga, 
Petrus  sacerdos  de  Sancto  Salvatore,  Radulfus  frater  ejus,  Pasturellus 
et  multi  alii. 


No.  18.] 

LETTRE   DE   HENRY   H.    (Sans  date.)= 

Henricus  rex  Anglic  dux  Normannie  et  Aquitanie  et  comes 
Andegavensis,  Ricardo  de  Reviers,  salutem  :  Precipio  tibi  firmiter 
quod  in  pace  et  juste  et  libere  facias  monachos  de  Monteburgo 
habere  decimam  de  Haya  Danneville  et  omnia  alia  que  carta  patris 

'  2  Cart,  de  la  15as.se-Norm.  p.  178.     Arch,  de  St.  Lo,  No.  96. 
-  II).  p.  180.     II).  No.  99. 


CART^   ET   PLACITA,  375 

tui  eis  confirmavit  ct  nominatim  medietatem  ecclesie  dc  Neahou 
sicut  carta  Ricardi  primi  de  Redvers  eis  illam  confirmavit  et  sicut 
Sapio  monachus  eorum  illam  habuit  et  tenuit  de  patre  tuo  et  de  te 
ipso.  Quod  nisi  feceris  Willelmus  de  Vernone  vel  ministri  sui 
faciant  et  in  ea  justicia  mea  faciat  facere  et  non  remaneat  pro 
passagio  meo.  Teste  Manessies  Biset  dapifero  apud  Barbefluctum 
in  transfretatione  regis. 


No.  19.] 

CHARTE   DE   HENRY   II.    (Sans  date.)' 

Henricus,  etc.  Precipio  vobis  quod  custodiatis  et  manuteneatis 
et  protegatis  abbatiam  Montisburgi  et  abbatem  et  monachos  ejusdem 
loci  et  terras  et  homines  et  omnes  res  et  possessiones  eorum  sicut  res 
meas  et  quod  nullam  eis  injuriam  vel  contumeliam  aut  quietiam 
faciatis,  nee  ab  aliquo  fieri  permittatis.  Si  quis  autem  eis  in  aliqua 
forisfacere  presumpserit  plenariam  sine  dilatione  eis  justiciam  fieri 
faciatis  quia  ipsa  abbatia  et  omnia  que  ad  earn  pertinent  sunt  in 
manu  mea  et  protectionc.  Prohibeo  etiam  ne  ipsa  abbatia  vel  abbas 
aut  monachi  de  ullo  dominio  tenemento  suo  ponantur  in  placito  nisi 
per  preceptum  meum  quamdiu  in  Anglia  moram  fuero,  etc.  Apud 
Valonias. 


No.  20.] 

CHARTE   DU   DUG   GUILLAUME   EN    to6ir 

In  nomine  Sancte  et  Individue  Trinitatis,  Patris  et  Filii  et 
Spiritus  Sancti,  amen.  Ego  Guillelmus  gratia  Dei  totius  Normannie 
dux,  rogatus  multimodis  ab  abbate  Ranulfo  monasterii  beati  arch- 
angeli  Michaelis  quod  est  in  monte  qui  tumba  antiquitus  nuncupatur. 
Concedo  eidem  loco  molendinum  ville,  que  Veim  vocatur  perpetuo 
possidendum  quod  etiam  pie  memorie  genitor  mens  Rotbertus 
eidem,  beato  archangelo  dederat.  Sed  Suppo  ipsius  loci  abbas, 
Ranulfo  monetario,  monachis  contradicentibus  illud  injuste  vendi- 
derat.  Postea  vero  quam  Ranulfus  abbas  ipsum  locum  regendum 
suscepit,  molendinum   suscepit.     Et  justo   examine   in   curia   mea 

'  2  Cart,  de  la  Basse-Norm.  p.  181.     Arcli.  de  St.  Lo,  No.  103. 
=  lb.  p.  236.     lb.  No.  21. 


376  APPENDIX. 

definitum  est,  molendinum  debere  Sancto  Michaeli  suisque  monachis 
manere  in  perpetuum.  Concede  igitur  ut,  ipsum  molendinum,  quod 
etiam  molendinum  comitis  dicitur  perpetuo  sit  juris  Sancti  Michaelis 
ad  victum  suorum  monachorum,  nee  habeat  potestatem  quisquam 
meorum  successorum  seu  ejusdem  loci  abbatum  vel  monachorum  hoc 
a  me  meisque  sancitum  immutare  qualibet  occasione  vel  quantalibet 
pretii  numerositate.  Ut  autem  hoc  mea  donatio  inconcussa  per- 
maneat  signum  vivifice  crucis  manu  propria  subtus  imprimere 
curavi.  Signum  gloriosissimi  ducis  Guillelmi>J<;  Sig.  Mathildis 
comitisse  t^ ;  Sig.  Maurilii  archiepiscopi  Rothomagensis  »J< ;  Sig. 
Johannis  presulis  Abrincensis  ^ ;  S.  Hugonis  presulis  Luxovi- 
censis  >J< ;  S.  Rotberti  Bertranni  »^  ;  S.  Stigandi  dapiferi  >^  ;  S. 
Radulfi  cubiculari  >J< ;  S.  Richardi  vicecomitis  ^.  Hsec  carta 
facta  est  apud  Rothomagum  anno  Dominice  incarnationis  millesimo 
sexagesimo  primo  indictione  xiii.'"" 

No.   21.] 

ROLE  CONTENANT  UN  JUGEMENT  DU   DUG   [ET  ROI] 

GUILLAUME.     (Sans  date).^ 

In  nomine  Sancte  et  Individue  Trinitatis  Patris  et  Filii  et  Spiritus 
Sancti,  amen.  Antecessorum  sollers  providentia  approbabili  more 
instituit  super  quasque  possessiones  ecclesiarum  cartarum  adhiberi 
testimonia,  quibus  viriliter  opprimatur  quotiens  emerserit  calumpnia- 
torum  pervicax  insolentia.  Ea  ego  intentione  commodum  duximus 
noticie  posteroruni  tradere,  qualiter  devenerit  in  dominio  monachorum 
Sancti  Michaelis  molendinum  de  quo  Joliannes  filius  Richardi  conatus 
est  eidem  sancto  archangelo  calunij^niam  struere  et  qualiter  eadem 
columpnatio  oppressa  sit  justo  judicio  optimatum  patrie  breviter 
annectare. 

Igitur  gloriose  recordationis  Rotbertus  dux  Normannorum  qui 
abbatiam  Alontis  Sancti  Michaelis  amplis  fundorum  redditibus 
nobilissime  dilatavit  prcfatum  molendinum  quod  in  proprio  jure 
tenebat,  aliaque  quam  plurima  eidem  loco  solenni  largitione  con- 
donavit,  et  ne  quisquam  sequentium  auderet  adimere  quicquam  ex  iis 
juri  Sancti  Michaelis  cum  terribili  analhcmathe  cyrographum  fieri 
impcravit,  digeslumciue  manu  sua  roboravit.  Qui  postquam  in  reditu 
Jcrusolimitano  apud  Niceam  hominem  exicns  eterne  vite  ut  credimus 

'  2  Cart,  de  la  Basse-Norm.  p.  237.     Arch,  de  St.  Lo,  No.  22, 


CARTyE    ET   PLACITA.  y]^ 

sullimatus  est  solio.  Suppo  abbas  ipsius  loci  contra  jus  suasquc 
idem  niolendinum  dedit  Ranulfo  monetario  monachis  id  contradi- 
centibus  unanimi  consilio.  rostmodum  autem  jam  domini  Ranulfi 
abbatis  temporibus  idem  molendinum  Gualeranus  filius  Ranulfi 
optinuit  ceteris  sue  parentele  multijjliciter  deficientibus,  a  (juo  pre- 
fatus  domnus  abbas  Ranulfus  non  minimo  pretio  illud  redemit 
pluribus  adhibitis  testibus  ctiam  gloriosissimo  seniore  nostro  Wille- 
helmo  tunc  quidem  Normannorum  principe  id  annuente  scriptoque 
confirmante  coram  suis  fidelibus  ut  licpiet  ipsius  verbis  insequcntibus 
que  ex  alia  membranule  annexa  sunt  propriis  caracteribus.' 

Hinc  jam  post  quindecim  plus  minusve  annorum  intersticia 
prefato  sercnissimo  rege  (juillclmo  indepto  de  nobiliter  gubcrnante 
Anglici  regni  fastigia,  supradictus  Johannes  ad  calumpniandum  idem 
molendinum  inspirate  prosiliit  sui  consimilium  animatus  insania  et 
quasi  precepto  ejusdem  incliti  regis  ipso  penitus  ignorante  saisivit 
illud  non  premissa  juste  probationis  audientia  ;  sepefato  vero  domno 
Ranulfo  abbate  hand  enerviter  obsistente  et  tale  prejudicium  Sancto 
Michaeli  ac  sibi  illatum  esse ;  regi  suggerente,  tandem  in  regali  curia 
locus  datus  est  disceptandi  utrinque  numerositate  oplimatum  patrie 
assidente,  ex  quibus  dominus  Gausfridus  Constantiarum  presul  est 
delegatus  regali  autoritate  discussor  et  judex  hujus  disceptationis, 
pariterque,  Ranulfus  vicecomes,  Niellus  (vel  Nigellus)  filius  Nielli, 
Rotbertus  de  Vezpunt  aliique  quam  plures  judices  ample  opinionis, 
qui  diligenter  et  ad  unguenr  disquirentes  originem  contentionis ; 
legali  judicio  diftinierunt  idem  molendinum  debere  Sancto  Michaeli 
suisque  monachis  manere  in  perpetuitate  omnis  successionis.  Hanc 
diffinitionem  victoriosissimus  rex  Guillelmus  approbans  et  confirmans 
regali  suffragio  jussit  hec  mandari  scripture  testimonio,  idque  ad 
perenne  monimentum  per  verba  sequentia  roboravit  affixo  signo 
proprio.  Ego  Guillelmus  gracia  Dei  rex  Anglorum  ac  princcps 
Normannorum  per  hoc  t^  signum  Sancte  Crucis  confirmo  decretum 
meorum  optimatum  supra  scriptorum  ut  molendinum  comitis  quod 
abbas  Ranulfus,  me  favente,  a  Gualeranno  redemit  perpetuo  sit  juris 
Sancti  Michaelis  ad  victum  suorum  monachorum,  nee  habeat 
potestatem  quicquam  meorum  succcssorum  scu  ejusdem  mentis 
abbatum,  vcl  monachorum,  hoc  a  me  meisque  sanecitum  immutare 
qualibet  occasione  aut  quantalibet  numerositate  pretiorum. 

Signum    victoriosissimi    regis    Guillelmi    >J<.      Sig.    nobilissime 
Mathildis  regine  ^  etc. 

'  See  No.  20,  =  Sic, 


378  APPENDIX. 

No.   2  2.] 

JUGEMENT  RENDU  AUX  ASSISES  DE  CAEN  EN  1157/ 

Anno  Ar-C°-L"-Vir-  in  assisia  apud  Cadomum  cum  Robertas 
abbas  de  Monte  Sancti  Michaelis  conquereretur  de  Jordano  de  Sacche- 
villa  quod  quasdani  consuetudines  at  exactiones  per  vim  capiebat  in 
hominibus  de  Eventoth  et  volebat  manutenere  eos  et  quasi  tueri 
contra  abbatem,  eo  quod  antecessores  ejus  dederant  Sancto  Michaeli 
predictam  villam  de  Eventhoth.  Diffinitum  est  in  plenaria  curia 
regis,  ut  pote  in  assisia  ubi  erant  barones  quatuor  comitatum,  Bajo- 
cassini,  Constantini,  Oximini,  Abrincatini,  quod  ex  quo  aliquis  in 
Normannia  dat  aliquam  elemosynam  alicui  abbatie,  nihil  omnino  ibi 
poterit  retinere  vel  clamare  preter  orationes,  nisi  specialem  habeat 
cartam  de  hoc  quod  vult  retinere  ducis  Normannie,  in  cujus  manu 
sunt  omnes  elemosyne  ex  quo  donaverant  abbatiis,  vel  locisreligiosis. 
Hoc  judicium  approbaverunt  et  confirmaverunt  Robertus  de  Novo- 
burgo  dapifer  et  justitia  totius  Normannie,  Philippus  episcopus 
Bajocensis,  Arnulfus  Lexoviensis,  Ricardus  Constanciensis,  Willelmus 
Tallevat  comes  Pontivi,  Ingergerius  de  Boura,"  Philippus  filius 
Erneisi,  Guillelmus,  Johannes,  Godardus  de  Walz,  Achard  Potin 
et  alii. 

No.  23.] 

CHARTE  DE  RICHARD  EVEQ.  DE  COUTANCES  EN  1158.^ 

Omnibus  sancte  matris  ecclesie  catholicis  tarn  presentibus  quam 
futuris  Ricardus  Dei  gracia  Constanciensis  in  Domino  salutem.  Que 
coram  rectoribus  sancte  ecclesie  finem  capiunt  ne  iterum  in  contro- 
versiam  ^'eniant  equum  est  scripto  et  sigilli  munimine  diligenter 
confirmare.  Ea  propter  universitati  vestre  notum  fieri  volumus  quod 
Willelmus  sacerdos  de  Ivetot  causam  quam  adversus  venerabilem 
abbatem  Robertum  et  monachos  Sancti  Michaelis  de  monte  super 
decima  de  Perella  in  Gerneroio  ingressus  fuerat  coram  nobis  refutavit 
et  prefato  abbati  decimam  illam  cum  omnibus  ejus  pertinentiis  in 
terra  et  Melagio  quietam  adclamavit,  ipse  et  frater  ejus  Alanus  et 
filius    suus    Ricardus   et   super   sanctum    evangelium    unusquisque 

'  2  Cart,  de  la  Basse-Norm.  p.  279.  "De  ma  collection"  i.e.  (Lechaude's), 
No,  61. 

^  Engelgerus  de  Bohone  ?     See />os/,  p.  396. 

^  2  Cart,  de  la  Basse-Norm.  p.  281,     Arch,  de  St.  Lo,  No.  64. 


CART7E   ET   PLACITA.  379 

eorum  juravit  quod  nichil  in  ca  dcinccps  clamarent  et  si  quis  super 
hac  emergerent  impctitorcs  abbatiam  prefatam  et  monachos  inde  pro 
posse  suo  juvarent.  Receperunt  etiam  proinde  ex  dono  et  gratia 
abbatis  et  monachorum  xiii.  libras  Andegavensium  et  alteri  fratrum 
religionis  suscepture  concessum  eo  retento  ut  secum  deferat  quod  tunc 
dinoscetur  habere.  Facta  est  hec  compositio  coram  nobis  et  assis- 
tentibus  his  fratribus  nostris  et  amicis  Ansgoto  abbate  de  Lucerna  et 
ejusdem  loci  priore ;  O.  cantore  nostro  ;  Philippo,  Willelmo,  Johanne 
archidiaconis  nostris  Alvercdo,  Willehiio,  Roberto  de  Sancto  Laudo, 
Roberto  de  Milli,  canonicis,  Ausgoto  decano,  Roberto  capellano,  et 
aliis  multis.  Anno  ab  incarnatione  Domini  M°C''LVIII  quarto  idus 
Junii,  in  ecclesia  Sancte  Marie  Constanciensis  ante  altare  apostolorum 
beatri  Petri  et  Pauli.  PIoc  autem  ut  inconcussum  maneat  auctoritate 
nostra  et  sigilli  nostri  munimine  confirmamus  et  ne  quis  contrarire 
cotietur  anathematis  censura  prohibemus. 


No.  24.] 

ACCORD  FAIT  EN  PRESENCE  DE  HENRY  II.  AU 
SUJET  DE  PONTORSON  EN   1160.' 

Universis  matris  ecclesie  filiis  Hugo  Dei  gratia  Rothomagcnsis 
archiepiscopus,  salutem,  gratiam  et  benedictionem.  Noverint  cuncti 
presentes  apices  vel  lecturi,  vel  audituri  controversiam  inter  ecclesiam 
Abrincensem  et  monasterium  Sancti  Michaelis  de  monte  super 
ecclesiis  Pontis  Ursonis  exortam  in  presentia  regis  Anglorum 
secundi  Henrici,  nostraque  et  episcoporum  Philippi  Baiocensis, 
Rotrodi  Ebroicensis,  Herberti  Abrincensis,  Hugonis  Dunelmensis, 
Thome  cancellarii,  Ricardi  constabularii  aliorumque  plurimorum  pro- 
cerum  Rothomagi  hoc  modo  esse  sopitam;  quod  donum  primi  et 
secundi  Henrici  regum  Anglorum  de  predictis  ecclesiis  predicto 
monasterio  factum  de  cetero  ratum  haberetur  et  inconcussum  atque 
presbitero  de  Boce-Alano  in  cujus  parrochia  predictum  castrum  ut 
ferebat  edificatum  erat  pro  tota  querela  sua  decidenda  et  com- 
pescenda  optio  daretur  vel  tunc  xx.  libr.  Andegavensium  finaliter 
accipiendarum  vel  tunc  etiam  x.  et  annuatim  dum  adjuveret  x. 
solidorum  predicte  monete  habendorum.  Testes  autem  supradicte 
trancactionis  sive  concordie  sunt  dominus  noster  Henricus  rex 
Anglorum,  Philippus  Baiocensis,  Rotrodus  Ebroicensis,  Herebertus 

'  2  Cart,  de  la  Basse-Norm.  p.  2S7.     Arch,  de  St.  Lo,  No,  73. 


38o  APPENDIX. 

Abrincensis,  Hugo  Dunelmensis,  episcopis,  Thomas  cancellarius 
regis,  Richardus  de  Humetis,  Guillelmus  filius  Hamonis,  et  alii 
multi  qui  huic  negotio  interfuerunt.  Quod  sigilli  nostri  munimine 
confirmamus  ne  aliqua  occasione  vel  fraude  iterum  in  controversia 
veniant  quas  finem  legitimum  sit  sortita.  Actum  Rothomagi  anno 
ab  incarnatione  Domini  M°C°LX''. 

No.  25.] 

ACCORD  ENTRE  L'ABBAYE  ET  WALTER  BLUNDEL. 

(Sans  date.)' 

Hec  est  conventio  facta  super  querela  que  vertebatur  inter 
abbatem  et  moiiachos  Sancti  Michaelis  et  Walterum  Blundel  super 
terram  de  la  Herdeland  quam  prenominatus  abbas  et  monachi 
concesserunt,  terram  de  la  Prestelanda  et  Pilemore  cum  bosco  qui 
circumcingitur  duobus  rivulis  scilicet  de  Grindecumbe  et  de 
Mieucumbc  prefato  Walterio  et  heredibus  suis  annuatim  solvendos 
V.  solidos  et  vi.  denarios  concesserunt  et  predicto  Waltero  habere 
sex  porcos  in  majori  bosco  sive""  pannagio  et  non  plures;  et  si 
ballivus  illius  manerii  vel  monachi  habuerint  porcos,  commune^ 
habebunt  in  bosco  Walterii.  Preterea  sepedictus  Walterius  habebit 
contra  ad  natalem  sex  quadrigatas  de  mortuo  bosco  ad  focum  et 
totidem  ad  clausum  ejus  et  meremmium  ad  carrucas  per  visum  et 
manum  ballivi  illius  manerii.  Hanc  conventionem  affidavit  predictus 
Walterus  tenendam  et  juravit  super  altare  Sancti  Michaelis  apud 
Ottritoniam  ipse  et  Yvo  ejus  heres  quod  ab  hac  conventione  de 
cetcro  non  resilirent. 

No.  26.] 

BREF   DE   HENRY   H.     (Sans  date,  extrait.^ 

Henricus  rex,  etc.,  Willclmo  et  Radulfo  Bigot,  salutem.  Precipio 
quod  Nicholaur.  prior  dc  Plaisiez  teneat  in  pace  et  juste  et  quiete 
elemosinam  de  Malestrea  quam  Alvercdus  Bigot  dedit  ei,  et  nullus  ei 
inde  super  hoc  injuriam  faciat  ct  nisi  feccritis,  justicia  mea  fecerit. 
Teste  iMiilippo  episcopo  Baiocensi,  apud  Argentonium. 

»  2  Cart,  de  la  Basse-Norm.  p.  228.     Arch,  de  St.  Lo,  No.  7$. 

'  Sine?  written  indistinctly.  ^  Sk. 

*  3  Cart,  de  la  Basse-Norm.  p.  24.     Arcli.  de  Calvados,  Cart.  vol.  i.  ch.  568. 


CARTi€   ET   PLACITA.  381 

No.  37.] 

BREF    DE    HENRY    II.    (Sans  date.)" 

Henricus  Dei  gratia  rex,  etc.  Sciatis,  abbatiam  Sancti  Salvatoris 
fecisse  compositioneni  et  pacem  cum  Thome  de  Grovilla  de  con- 
troversia  que  erat  inter  abbatiam  et  ipsum,  tali  modo  quod  abbatia 
fratrem  Petrum  ejusdem  Thome  recepit  vicarium  in  ecclesia  sua  de 
Direte  (hodie  Flamanville)  quamdiu  viveret  et  Thoma  vero  dedit 
terram  apud  Grovillam.  Quare  volo  et  firmiter  precipio  ut  hec  com- 
positio  me  concedente  facta,  lirma  sit  et  stabiHs  ne  abbatia  post 
mortem  Petri  ejusdem  ecclesie  presentationem  perdat,  nee  Thomas 
terram  sibi  assignatam  amittat.  Testibus  Gaufrido  episcopo  Eliensi, 
Henrico  episcopo  Baiocensi.     Apud  Cadomum. 

No.  28.] 

ACCORD  FAIT  PAR   GUILLAUME   EVEQUE   DE 
COUTANCES  EN  1120.= 

Universis,  etc.  Willehiius  Dei  gratia  Constanciensis  episcopus 
salutem.  Noverit  universitas  vestra  quod  cum  inter  monachos 
Sancti  Salvatoris  ex  una  parte  et  Ricardum  de  Sancto  Helerio  et 
Ricardum  Wace  ex  alia  super  prediis  Sancti  Helerii  questio  aliquan- 
diu  ventillata  fuisset  in  hunc  modum  pacis  in  nostra  presentia 
convenerunt  predicti  presbiteri  prefatis  monachis  de  prediis  illis  x. 
boisellos  frumenti  annuatim  exolverent.  Et  hoc  juraverunt  firmiter 
observandum.  Actum  anno  Domini  jM'C"-  XX°-  apud  Sanctum 
Laudum. 


No.  29.] 

ACCORD    FAIT   ENTRE   L'ABBE    DE    SAVIGNY   ET    LES 
ENFANS   DE   ROBERT   DE   MOSCON.     (Extrait.)  ^ 

Noverint  universi  quod  contentio  inter  monachos  Savinienses  et 
filios  Roberti  de  Moscon,  scilicet  Johannem,  Radulfum  et  Guillel- 
mum  de    Moscon,  post   multas   altercationes    in   presentia   domini 

*  3  Cart,  de  la  Basse-Norm.  p.  35.     Arch,  de  St.  Lo,  No.  4. 

-  lb.  p.  56.     lb.  No.  51. 

3  lb.  p.  78.     Arch,  de  Mortain,  No.  35. 


382  APPENDIX. 

Radulfi  Filgeriensis  ct  domini  Alani  de  Dinanno  et  Radulfi  de 
Albinncio  in  liunc  modum  terminata  fuit.  Filii  vero  Robert!  de 
Moscon  in  perpetuam  elemosinam  concesserunt  monachis  Savignien- 
sibus  quicquid  juris  habebant  in  Brolio  de  Moscon  in  raasura  de  Vaux 
et  in  terra  de  Verneia  et  in  haillis  Costardi  et  in  prato  Igerii  Tuelon 
at  in  omnibus  aliis  rebus,  etc.  Et  ob  hanc  demissionem  et  conces- 
sionem  sepissime  nominatis  fratribus  xx."  libras  Andegavensium 
et  unum  equum  monachi  dederunt  et  etiam  concesserunt  eis  ut 
habitum  religionis  cum  voluerunt  eis  dabunt.  Et  ut  hoc  memoriter 
inposterum  conservetur  tarn  fideli  roboratum  testimonio  presens 
scriptum  dominus  Radulfus  Filgeriis  et  dominus  Alanus  de  Dinanno 
et  Radulfus  de  Albinneio  suorum  astipulatione  sigillorum  munierunt. 


No.  30.] 

CHARTE    DU   ROI   HENRY   11.     (Sans  date.)' 

Henricus,  etc.,  omnibus  justiciis  et  baronibus  Normannie  et 
Passeis,  salutem.  Sciatis  me  recepisce  et  retinuisse  in  protectione  et 
manu  mea  propria  abbatiam  de  Savigneio  cum  hominibus  et  posses- 
sionibus  et  omnibus  pertinentiis  suis ;  me  etiam  Deo  fideliter 
promississe  et  vovisse  quod  eandem  abbatiam  et  omnia  sua  ubi- 
cunque  in  mea  potestate  sint  defendam,  et  in  pace  et  quiete  et  libere 
custodian!.  Mando  itaque  vobis  et  firmiter  precipio  quatinus  ipsam 
abl)atiam  et  monachos  et  homines  et  omnes  res  ad  eam  pertinentes 
sicut  res  meas  dominias  ab  omni  molestia  et  inquietudine  et  injuria 
tueamini  et  defendatis.  Preci])io  et  prohibeo  ne  ahquo  modo  patia- 
mini  predicte  abbatie  monachos  vel  homines  suos  in  placitum  vel 
querelam  nuti  de  re  ahqua  unde  fuerint  saisiti  die  illo  quo  in 
Angliam  transfretavi.  Quod  si  ahquis  super  hoc  meum  preceptum 
inquietare  vel  quolibet  modo  molestare  presumpserit,  tunc  vobis 
mando  et  sicut  me,  et  mandatum  meum  diligis  precipio  ut  tam  prope 
et  tam  plenarie  de  eo  justiciam  faciatis  sicut  in  me  aut  res  mei  domanii 
ipsam  contumeliam  facerct.  Teste  Guillelmo  filio  Hamonis.  Ai)ud 
Barbefluctum. 

'  3  Cart,  de  la  Basse-Norm.  p.  So.     Cart,  dc  M.  de  Gerville,  No.  37. 


CARTyE   ET   PLACITA.  383 

No.  31.] 

CHARTE  DU  ROI  HENRY  II.  (Sans  date.)' 

Henricus,  etc.  Sciatis,  abbatem  et  monachos  de  Savigiieio 
disrationavisse  in  curia  mea  apud  Domnifrontcm,  me  presente, 
terram  et  decimam  de  quibus  inter  eos  et  Robertum  filiuni  Radulfi 
erat  dissensio.  Ideoque  rnando  et  firmiter  precipio  quod  liabeant 
illam  et  teneant  in  bene  et  in  pace  quiete  sicut  ilia  in  curia  niea  dis- 
rationaverit.  Testibus  Willelmo  filio  Hamonis,  et  Petro  de  Sancto 
Ilario. 


No.  32.] 
CHARTE  DE  CONSTANCE  DUCHESSE  DE  BRETAGNE. 

(.Sans  date.)' 

Omnibus,  etc.  Constancia  ducissa  Britannie  et  comitissa 
Richemondie,  salutem.  Sciatis  quod  filii  Gaufridi  Gifart,  videlicet 
Gaufridus  Bufelin  et  Willelmus  et  Emma  soror  eorum,  omnem 
calumpniam  quam  adversus  monachos  Savigneii  faciebant  super  vi. 
quarteriis  frumenti  annui  redditus  quos  eisdem  monachis  Willelmus 
filius  Pagani  in  terra  de  Vernea  vendiderat,  penitus  dimiserunt. 
Ipsampue  venditionem  ita  libere  et  quiete  concesserunt  quod  nichil 
in  ea  decetero  reclamabitur.  Hujus  rei  testes  sunt.  x\ndreas  de 
Vitreio,  Brientius  de  Coisn.,  Eudo  de  Bellomonte,  Guido  Brito, 
Petrus  Brito,  Rotbertus  Brito,  Gaufridus  de  Gasto,  Petrus  de  Sancto 
Melan.,  Petrus  Herant,  et  alii  plures.  Quod  ut  firmum  et  inviolabile 
possit  haberi  presenti  scripto  et  sigilli  nostri  munimine  roboravi. 


No.  33.] 

CHARTE  CONFIRMATIVE  DU  ROI  HENRY  II.  (Sans  date.)^ 

Henricus  rex,  etc.  Sciatis  me  ad  petitionem  conventus  Savigneii 
et  abbatis  ejusdem  loci  et  Gaufridi  de  Monfort  salvo  jure  Con- 
stanciensis  ecclesie,  concessisse  et  presenti  carta  mea  confirmasse 
conventionem    que   facta   est    inter   ipsum   abbatem    et   monachos 

'  3  Cart,  de  la  Basse-Norm,  p.  Si.     Arch,  de  Mortain,  No.  38 

=  lb.  p.  84.     lb.  No.  42. 

'•  lb.  p.  89.     lb.  (?),  role  parliculier,  No.  51. 


384  APPENDIX. 

Savigneii  et  predictum  Gaufridum  de  ecclesiis  de  Ketevilla  et  de 
Goevilla  de  quibus  controversia  erat  inter  eos  coram  justiciis  meis. 
Scilicet  quod  abbas  et  conventus  presentationem  ecclesie  de  Gcevilla 
in  perpetuum  possidebuntGaufridus  vero  et  heredes  sui  presentationem 
ecclesie  de  Ketevilla  in  perpetuum  habebunt.  In  utraque  parrochia 
predictarum  ecclesiarum  percipient  ipsi  monacbi  unam  medietatem 
omnium  decimarum  frugum  scilicet  leguminum,  lini,  cannabi, 
animalium,  fructuum,  et  lanarum.  In  parte  si  quidem  predict! 
Gaufridi  et  heredum  suorum  cedet  altera  medietas  salvis  tamen  in 
decima  de  Gcevilla  xx"  quartariis  ordei,  etc.  Quare  volo  et  firmiter 
precipio  quod  prescripta  compositis  stabilis  et  rata  permaneat  sicut 
inter  prenominatos  abbatem  et  monachos  et  Gaufridum  facta  est, 
et  firmiter  et  inconcusse  teneatur,  sicut  carte  illorum  testatur. 
Testibus  Hunfrido  de  Bohun  conestabulario  Hugone  de  Creissy, 
Roberto  de  Stuttevilla,  Gilberto  Pipard. 


No.  34.] 

CONFIRMATION   DE    L'ACCORD    FAIT   CI-DESSUS    PAR 
GEOFFROI    DE   MONFORT.     (Sans  date.)' 

Ego  Gaufridus  de  Monteforti  presentibus  et  futurls  notum  fieri 
volo  quam  controversia  que  fuit  inter  me  et  monachos  Savignienses 
super  ecclesiis  de  Ketevilla  et  Goevilla  consilio  bonorum  et  sapientium 
virorum  apud  Redoia  in  presentia  domini  Philippi  Redonnensis 
episcopi  tali  compositione  concordata  est.  (Vide  ut  supra.'"')  Ego 
quoque  et  mei  milites  Robertus  filius  Hugonis  Willelmus  de  Gebreseio, 
Willelmus  propositus,  Rualendus  de  INIonte  Orfin,  Botterel  de  Eosco- 
lagu  predictam  compositionem  nos  fideliter  servaturos  et  a  nostris 
firmiter  servari  facturos  in  manu  Petri  Redonensis  archidiaconi  fide 
corporali^  firmaverunt.  Uxor  etiam  mca  Gervasia  et  nostri  liberi 
Radulfus,  Willelmus,  Rolandus,  Eudo,  Matildis  et  Amicia  huic  con- 
cordic  benignum  prebuerunt  assensum  et  consensum.  Ut  autem 
Concordia  ista  firma  in  perpetuum  maneat  et  inconcussa  presenti 
carta  mea  cam  muniri  et  sigillo  meo  roborari  feci.  Hujus  coniposi- 
tionis  testes  fuerunt  Robertus  filius  Hugonis,  Johannes  filius  ejus, 

'  3  Cart,  de  la  Basse-Norm.  p.  89.    Arch,  de  Mortain  (?),  role  particulier,  No.  52. 
~  No.  33.  3  Conip.  a/! ft',  p.  115. 


CART/E   ET   PLACITA.  385 

GaufriJus  Boterel,  Rualendus  dc  Monte  Orfin,  Johannes  filius  Helie 
de  Albineio,  Robcrlus  presbyter  de  Sacio,  Willelmus  de  Vera  cum 
aliis  pluribus. ' 


No.  35.] 

ACCORD  ENTRE    L'ABBESSE    DE   CAEN  ET  L'ABBl^  DE 
THEOKESBERY/ 


Universis  ecclesie  Dei  filiis  Fromundus  abbas  Theokesbery  totius- 
que  conventus  cjusdem  loci  salutem.  Noverit  universitas  vestra 
controversiam  que  inter  nos  et  ecclesiam  Sancte  Trinitatis  de  Cadomo 
versabatur  super  ecclesiam  de  Aveling.  amicabili  pactione  hoc  mode 
finitam  esse;  videlicet,  quod  sancti  moniales  predicti  monasterii 
Sancte  Trinitatis  nomine  transaction^  xx.  marcas  argenti  ecclesie 
nostre  dederunt  ut  a  lite  omnino  discederemus.  Quare  nos  propter 
pacis  caritatis(iue  concordiam  ad  comparandos  legitimos  redditus,  has 
predictas  xx.  marcas  in  capitulo  nostro  suscepimus  et  quicquid 
juns  in  ecclesia  de  Aveling.  vel  in  pertinentiis  suis  habuimus 
ecclesie  Sancte  Trinitatis  de  Cadomo  rcmisimus  atque  modis  omnibus 
quietum  clamavimus.  Huic  autem  transactioni  ex  mandato  domini 
Rogerii^  Wigornensis  episcopi  interfucrunt  Radulfus  prior  Wigor- 
nensis  qui  tunc  temporis  in  negociorum  ecclesiasticorum  executione 
vicem  gerebat  episcopi  et  Matheus  archidiaconus  Glocestrie  quod 
ex  sigillorum  dependentorum  testimonio  comprobatur.  Testibus 
Baldrico  decano  de  Sapton.,  Rogero  de  Wich,,  Rainald  de  Aveling., 
Salome  presbitero,  Willelmo  capellano  Theokesbery,  magistro  Silvestro 
Ricardo  et  Thoma  de  Bisleg.,  Ricardo  de  Hanton,  Hugone  de  Telt- 
bery,  Waltero  de  Stanley,  Philippo  de  Grenhamstud.,  Willelmo  et 
Abraham  clericis,  Willelmo  de  Felsted,  Harduino  de  Bisleg.,  Henrico 
de  Hanton.,  Ricardo  monacho,  Willelmo  de  Nortun,  Warino  de 
Salesbery. 

'  Nos.  S3,' 54,  55  are  subsequent  confirmations  of  this  agreement,  dated  1212, 
1223,  1224. 

-  3  Cart,  dc  la  Basse-Norm.  p.  257.     Arch,  de  Calvados,  No.  86. 
3  Roger,  son  of  Robert,  carl  of  Gloucester,  1164-I179. 

2    C 


386  APPENDIX. 

No.  36.] 
LETTRE  D'AMAURY  COMTE  D'EVREUX.     (Sans  date.)' 

Amalricus  comes  Ebroicensis,  vicecomiti  suo  de  Waravilla  at 
omnibus  baronibus  suis  et  prepositis  eorum  de  honore  de  Batvent, 
salutem.  Precipio  vobis  ut  teriam  et  homines  Sancti  Martini  et 
abbatis  et  monachum  de  Troarno  immunes  sint  ab  omni  querela  et 
omnia  que  habent  in  honore  de  Bavent  quieta  sint,  quia  sic  volo  et 
concedo  pro  mea  et  antecessoruni  meorum  salute.     Valete. 

No.  37.]         LETTRE  DE  HENRY  II.     (Sans  date.)= 

Henricus  rex,  etc.,  justiciis,  vicecomitibus  et  omnibus  ministris  suis 
de  Reiesmo,  salutem.  Sciatis  quod  ecclesia  de  Briwetoniaet  canonici 
ibidem  Deo  servientibus  et  omnis  eorum  res  et  possessiones  sunt  in 
mea  manu  et  custodia  et  protectionc.  Et  ideo  volo  et  firmiter 
precipio  quo  predict!  canonici  habeant  et  teneant  omnes  tenuras  et 
possessiones  et  libertates  et  liberas  consuetudines  suas  et  nominatim 
ecclesiam  de  Lion  cum  decimis  et  omnibus  aliis  ad  earn  pertinentibus 
bene  et  in  pace,  juste  libere  et  quiete  et  honorifice.  Et  si  quis  super 
hoc  aliquam  eis  fecerit  injuriam,  plenariam  eis  sine  dilatione  faciatis 
justiciam  ;  et  nisi  feceritis  justicia  mea  Normannie  faciat.  Teste 
Ricardo  de  Lucy  apud  Pictaviam. 

No.  38.]         LETTRE  DE  HENRY  II.     (Sans  date.)^ 

Henricus  rex,  etc.,  archiepiscopo  Rothomagensi,  episcopis,  archi- 
diaconis,  decanis,  comitibus,  baronibus,  justiciis,  vicecomitibus,  et  om- 
nibus ballivis  et  fidelibus  suis  Normannie  salutem.  Sciatis  quod  prior 
Sancte  Marie  deBriweton  et  canonici  regulares  in  eadem  ecclesia  Sancte 
Marie  Deo  servientes  et  omnes  res  et  i)ossessiones  sue  sunt  in  manu 
et  custodia  et  protectione  mea.  Vx  ideo  preci]uo  quod  priorem 
ilium  et  canonicos  et  omnes  res  et  possessiones  suas  et  (iuecun([ue 
ad  eos  spectant  in  Nermann  ia  custodial  is  et  in  manu  teneatis  et 
protegatis  sicut  mea  propria.  Ita  ([uod  nullam  molestiam  vel  injuriam 
aut  gravamen  eis  de  aliquo  faciatis,  nee  fieri  permittatis.     Et  si  quis 

'  3  Cart,  de  la  Basse  Noim.  p.  332.     Cart,  de  Tioarn,  fol.  82,  No.  21. 
'  Tb.  p.  344.     lb.  fol.  22,  No.  33.  3  lb.  p.  345.     lb.  fol.  23,  No.  34. 


CART.E    ET   TLACITA.  387 

eis  in  aliquo  forisfaccre  presumpserit  pleuariaui  eis  inde  sine  dilatione 
justiciam  fieri  facialis.  Et  de  nuUo  teneniento  suo  (luod  habent  in 
Normannia  pjnantur  in  placitum  nisi  coram  me.  Teste  Willelmo 
clerico  dc  Cania,"  apud  Mcrlebergam. 

No.  39.] 

ACCORD    FAIT    PAR    HENRY    II.     (Sans  date.) ^^ 

HenricLis  re.x,  etc.,  archiepiscopo  (ut  supra,  No.  38).  Sciatis 
controversiam  que  versabatur  inter  abbatiam  Troarni  et  comitem 
Johannem  hoc  modo  terminatuni  fuit :  scilicet,  quod  abbas  Gisle- 
bertus  et  conventus  abbatie  Troarni  clamaverunt  quicta^  comiti 
Johanni  et  heredibus  suis  totum  manerium  de  Remberthorame  et 
decimam  foreste  Gufferni  de  Vinaz.  Et  comes  Johannes  concessit 
predicte  abbatie  decimam  thelonei  de  Montegomerici  et  tenementum 
filiomm  Roise  apud  Troarnum,  et  insuper  omnia  tenementa  que 
continentur  in  cartis  ipsius  abbatie  quas  habet  de  comite  Rogero 
antecessore  comitis  Johannis  in  bosco  et  piano,  in  pratis  et  pascuis, 
in  aquis  et  molendinis  et  in  omnibus  aliis  rebus.  Et  idem  comes 
posuit  prefatam  abbatiam  in  manu  mea  et  custodia  et  protectione 
liberam  et  quietam  ab  omni  servicio  et  ab  omni  exactione  immunem 
ab  ipso  et  heredibus  suis.  Et  ideo  volo  et  firmiter  precipio  quod 
hec  composilio  stabilis  inter  eos  maneat  et  inconcusse  teneatur  sicut 
superius  determinata  est  et  in  presentia  mea  facta.  Testibus  R. 
archiepiscopo  Rothom.,  R.  archiepiscopo  Eboracensi,  Henrico 
episcopo  Baiocensi,  A.  episcopo  Lexoviensi,  R.  episcopo  Constan- 
ciensi,  R.  episcopo  Abrincensi,  H.  abbate  Fiscanni,  R.  abbate  de 
Monteburgo,  R.  abbate  Valacie,  V.  abbate  Sancti  Georgi  de  Baucher- 
villa,  Ricardo  de  Humel.  constabulario,  Willelmo  de  Curci  dapifero, 
Fulcon.  Prenello,  Willelmo  filio  Hamon.,  Ricardo  de  Canvilla,  Seihero 
de  Quincy.     A])ud  Valoniam. 

No.  40.] 

WRIT   OF    HENRY   II.    AS  TO  AN   ASSISE. •• 

Henricus  rex  Anglic^e  et  dux  Normannorura,  et  Aquitanice,  et 
comes  Andegavorum,  Willelmo  Patricii,  salutem.     Precipio  tibi  quod 

'  Camera? 

'  3  Cart,  de  la  Basse-Norm.  p.  345.     Cart,  de  Troarn,  fol.  7,  No.  35.       ^  sic. 

*  Cart,  de  Baieux,   or  Liber  Niger  de  Baieux,  fol.  4,  No.  10.     The  following 

writs  and  charters  from  this  cartulary  are  of  the  time  of  Philip  d'llarcourt,  bishop 

2    C    2 


388  APPENDIX. 

sis  ad  primam  assisam  qure  erit  citra  Lexovium,  ct  habeas  ibi  quarantes 
tuos  qui  quarantizent  tibi  feoda  ilia  que  tenes  de  feodo  episcopi 
Bajocensis,  de  quibus  conqueritur,  scilicet  de  feodo  Walchelin  de 
Corcella  de  Renigore,  et  de  Walchel  Maminot  de  Noers,  et  Helionis 
conestabuli,  de  Gisetot,  et  Radulphi  de  Rovencestra  de  Mondrevilla, 
et  Rogeri  Malfilastre  de  Monte  Secreto,  et  de  Frenesia.  Et  nisi 
feceris,  precipio  quod  justitia  mea  faciat  ei  habere  considerationem 
mese  curias  secundum  quod  audicrit  wnrantes  tuos,  quod  idem  episcopus 
habere  debet  in  prgedictis  feodis,  ct  pacem  hie  faciat  hominibus  de 
feodis  illis,  et  terre  predicte  de  auxiliis,  et  omnibus  querelis,  ita  quod 
tu  nichil  de  ilia  capias  donee  diffinitum  sit,  quid  episcopus  in  illis 
feodis  habere  debet,  et  faciat  ei  habere  considerationem  in  cujus 
manu  feoda  ilia  remanere  debent.  Interim  et  sine  dilatione  reddas 
plenarie  omnia  catalla  [?]  qux  de  his  feodis  cepisti.  quando  fui 
Bajocas  ad  assisiam  meam.  Teste  Thoma'  episcopo  Lexoviensi, 
apud  Baiocas. 

No.  41.] 

CHARTER   OF   HENRY   H.    CONFIRMING  A  FINE  AND 

CONCORD/ 

Henricus  Dei  gratia  rex  Anglire  et  dux  Normannie  et  Aquitanie 
et  comes  Andegavorum  archiepiscopis,  episcopis,  abbatibus,  comi- 
tibus,  baronibus,  justiciariis,  vicecomitibus,  et  omnibus  ministris  et 
fidelibus  suis,  salutem.  Sciatis  me  presente  Henrico  Bajocensi 
episcopo  et  favente  ad  petitionem  Roberti  de  Isingni,  concessisse 
et  prffisente  mea  carta  confirmasse  finem  et  concordiam  quce  facta 
est  coram  me  inter  capitulum  ecclesice  Bajocensis,  et  prasfatum 
Roberturn  de  Isingni,  scilicet  quod  idem  Robertus  dimisit  capitulo 
Bajocensi  omnino  quietum  mesagium  sacerdotis  cum  virgulto  in  quo 
mansit  Mabo  presbiter,  et  cum  terra  arabili  que  est  in  capite  virgulii, 
et  omne  jus  cjuod  quoquo  modo  dicebat  se  habere  in  ecclesia  de 
Isingny,  universum  quoque  jus  percipiendi  decimas  de  toto  illius 
ecclesie  territorio  :  si  quod  pertinebat  ad  eum  sive  de  grangia  capituli, 
sive  de  terris  ipsius  Roberti  aut  alienis,  sive  decime  consistant  in 

of  Bayeux,  A.r,  I144-I166,  who  had  been  chancellor  to  King  Stephen.  Many 
being  of  the  time  also  of  Henry  II.,  the  dates  of  such  are  thus  fixed  between  the 
years  11 54  and  1166;  while  the  rest  are  of  course  of  the  ten  years  preceding. 
The  MS.  itself  is  of  the  thirteenth  century.  Extracts  from  a  few  of  these  records 
have  been  printed,  but  none  have  ever  before  been  printed  in  full. 

'  Quaere.  ^  Cart,  de  Laieux,  fol.  4,  No.  1 1. 


CART/E    KT    PLACITA.  3S9 

duabus  garbis,  sivc  in  tertia.  Terraruni  vero  facta  divisione  super 
quibus  vertebatur  contentio,  juxta  formain  pacis  habct  capitulum 
terrain  que  est  versus  forcstam.  Et  contra  istam  habct  Robcrtus 
culturam  qua;  est  sub  gardeno  Ade,  et  culturam  que  est  de  feodo 
Croste.  Item  habet  capitulum  totum  pratum  de  Felger.  Et 
Robcrtus  habet  totam  landam  versus  Goleth.  Item  habet  capituhmi 
Milonem  de  Gonessa  et  Arnulfum  Resuch  et  Hogam,  F^t  Robcrtus 
habet  contra  hcec :  Pilosum  et  Herveum  de  Goleth.  Item  prefatus 
Robertus  dimisit  ipsi  capitulo  diniidium  acre  terre  quam  tenet 
Cliipheth,  Et  Willelmus  ncpos  ejus  et  dimidiani  acram  quam  tenet 
filia  Riculfi.  Et  tres  virgatas  quas  tenet  Rogerius  Tanchere.  Et 
dimidiam  acram  quam  tenet  filius  Gocie,  et  Grosvassat,  et  mansuram 
Bersech  de  Aumanvill.  Hanc  autem  concordiam  juraverunt  in  per- 
petuum  observaturos  Robertus  et  Simon  et  Rogerus  Suhart  fratres 
ipsius  Roberti  super  sancta  cvangelia  publice  in  processione  ecclesie 
Bajocensis.  Et  capitulum  dedit  eidem  Roberto  xxvi.  marcas 
Andegav'enses,  et  fratribus  illius  Ix.  solidos  Andegavenses  pro  bono 
pacis,'  et  ut  jus  quod  capitulum  habebat  in  prosdictis,  et  pra^fati 
diutius  perturbaverant,  sibi  quietum  dimitterent,  et  inconcussam,  et 
ipsi  quicquid  juris  in  eis  se  habere  dicebant  sicque  super  majus 
altare  ecclesie  Bajocensis  posuerunt  ei  omnino  renunciantes.  Quare 
volo  et  firmiter  precipio,  quod  prescripta  concordia,  sicut  coram  me 
facta  fuit,  firmiter  et  inconcusse  teneatur.  Testibus  M.  abbate  de 
Curzay,  P.  abbate  de  Cadomo,  magistro  Waltero  de  Constantiis, 
magistro  I.  Cicestrensi  archidiacono,  magistro  Petro  Blesensi, 
Willelmo  filio  Radulfi,  Sch.  Normasi,  Folqueto  Painel,  Ricardo  de 
Aufay,  Roberto  de  Bricurt,  Hamon  Pincerna,  apud  Burum. 

No.  42.] 

CHARTER  OF  HENRY  II.  AS  TO  AN  ASSISE.^ 

Henricus  dux  Normannirc  et  comes  Andegavorum  H.  Dei  gratia 
Rothomagensi  archiepiscopo,  et  omnibus  episcopis  comitibus  ct 
baronibus  suis  de  Normannia,  salutem.  Quoniam  ecclesia  Bajocensis 
post  mortem  Odonis  episcopi  per  subsequentium  episcoporum 
impotentiam,  tum  per  eorumdem  ncgligentiam,  et  perditiones  et 
donationes  et  commulationes  ab  ipsis  factas  fere  ad  nichilum 
redacta   erat,   ne   funditus   ecclesia   predicta   destrueretur,   proinde 

'  Sh:  '■'  Cart,  de  Baieux,  fol.  5,  No,  14. 


390  APPENDIX. 

Henricus  rex  avus  mens  instituit  ut  juraniento  antiquorum  liominum 
qui  rem  norunt,  recognoscerentur  tenedura  jamdicte  ecclesie  sicut 
fuerant  in  tempore  predicti  Odonis  tarn  in  dominicis  quam  in  feodis 
militum,  vavassorum  et  rusticorum,  ipsius  equidem  tempore  hec 
omnia  jurata  sunt  et  recognita  et  sepedicte  ecclesie  precepto  ejus 
resignata  et  munimine  carte  sue  (juocuncj^ue  modo  a  possessione 
ecclesie  alienata  essent,  reddita  sunt  et  confirmata.  Subinde 
Gaufridus  comes  Audegavensis  pater  meus  commonitione  et 
precepto  apostolicorum  virorum  Lucii  et  luigenii  qui  omnium 
episcoporum  Bajocensium  ab  Odone  usque  ad  Philippum  succe- 
dentium  donationes  et  venditiones  et  commutationes  et  omnes 
alienationes  quas  de  predicte  ecclesie  beneficiis  facerant,  irritas  esse 
preceperunt.  Item  dominica  et  feoda  et  onmes  Bajocensis  ecclesie 
teneduras  sicut  fuerant  in  tempore  Henrici  regis  jurata  juramento 
fecit  recognosci,  et  sicut  Bajocensis  ecclesia  in  tempore  Odonis 
episcopi  tenuerat,  ea  ex  integro  eidem  ecclesie  resignavit  et  cartha 
sua  confirmavit.  Vestigiis  igitur  antecessorum  nostrorum  avi  scilicet 
et  patris  inherere  concupiscentes  et  patrum  nostrorum  apostolicorum 
Lucii  et  Eugenii  commonitioni  et  precepto  obtemperare  volentes  : 
mandamus  et  precipimus  ut  dominica  et  feoda  et  possessiones 
libertates  et  consuetudines  Bajocensis  ecclesie  et  omnes  tenedure 
quas  habuit  in  tempore  Odonis  episcopi,  sicut  unquam  ea  melius  et 
liberius  in  tempore  ejus  habuit  juramento  legitimorum  et  antiquorum 
hominum  qui  rem  norunt,  recognoscantur,  sicut  fuerunt  jurata  et 
recognita  in  tempore  avi  mei  et  patris.  Ea  itaque  omnia  sepe- 
memorate  ecclesie  reddimus  concedimus  et  confirmamus.  Teste 
Garino  filio  Girardi,  Willelmo  filio  Hamonis,  Manessero  Biset. 
Apud  Falesiam. 

No.  43.] 

WRIT  OF  THE  DUKE  OF  NORMANDY,  PROVIDING 
FOR  A  RECOGNITION  IN  A  CASE  OF  DISPUTE  AS 
TO   LANDS   OF   THE   CHURCH   AT   BAYEUX.' 

Dux  Normannie  et  comes  Andegavorum  omnibus  baronibus  suis 
justitiis  baillivis  et  omnibus  fidelibus  suis  hominibus,  salutem.  Volo 
et  precipio  quod  Philippus  Bajocensis  episcopus  teneat  omnes  terras 
suas  tam  in  dominicis  quam  in  feodis  et  omnes  teneduras  suas  ita 

'  Cart,  do  15aieux,  fol.  5,  No.  16. 


CARTyE    ET    PLACITA.  391 

plenarle  et  honorifice  sicut  Odo  episcopus  unquam  melius  et  liberius 
tenuit.  Et  quia,  sicut  bene  novimus  res  Bajocensis  ecclesie  per 
negligentiani  aut  impotentiam  antecessorum  morum  male  disperse 
sunt  et  a  pluribus  occupate :  volo  et  precipio  (juod,  si  de.aliqua 
tencdura  orta  fuerit  contentio  inter  episcopum  et  aliquem  de  suis 
hominibus  :  per  juramentum  legitimorum  vicinie  in  qua  hoc  fuerit, 
sit  recognitum  quis  saisitus  inerat  tempore  Odonis  cpiscopi,  vel  ipse 
episcopus  vel  ille  cum  quo  erit  contentio,  et  cjuod  inde  recognitum 
fuerit,  firmiter  teneatur,  nisi  ille  qui  tenet  potuerit  ostendcre  quod 
tenedura  ilia  in  manus  suas  postea  \enerit  jure  hereditario  aut  tali 
donatione  que  juste  debeat  stare,  et  hoc  in  curia  episcopi  vel  in  mea. 
Volo  etiam  et  precipio  et  prohibeo  ne  aliquis  pro  facienda  justitia 
nee  pro  alio  intrent  in  terram  episcopi  Bajocensis  nisi  illi  servientes 
qui  ab  antiquo  ad  hoc  constituti  sunt,  et  qui  hoc  faciebant  tempore 
Henrici  regis,  nee  isti  et  hoc  faciant  nisi  sicut  justum  fuerit.  Teste 
comite  Mellenti  [?].     Apud  Rothom. 

No.  44.] 

WRIT  OF  THE   DUKE   OF  NORMANDY,  REQUIRING  A 
RECOGNITION.' 

Dux  Normannie  et  comes  Andegavorum  Reginaldo  de  Sancto 
Vallerico,  Roberto  de  Novo  Burgo,  et  omnibus  justiciariis  suis  de 
Normannia,  salutem,  Volo  et  concede  quod  ecclesia  beate  Marie 
Baiocensis  et  Philippus  episcopus,  et  successores  ejus  habeant  et 
teneant  leugatam  de  Cambremario  ita  bene  et  integre  et  honorifice 
sicut  Odo  episcopus  earn  tenuit  cum  omnibus  consuetudinibus  quas 
in  ea  tenuit  in  tempore  Willelmi  regis  senioris,  et  sicut  Ricardus 
filius  Samsonis  eam  melius  habuit  in  tempore  Henrici  regis.  Propterea 
mando  vobis  et  precipio  quod  faciatis  recognosci  per  sacramentum 
proborum  hominum  de  vicinio  terminos  leugate  et  consuetudines  et 
forisfacturas  et  verendam."  J^t  faciatis  heec  omnia  habere  et  tenere 
in  pace  Philippo  episcopo  sicut  predicti  antecessores  ejus  ea  melius 
habuerant  in  temporibus  predictorum  regum.  Si  quis  vero  ei  inde 
resistere  voluerit  precipio  vobis  quod  firmam  justiciam  inde  faciatis. 
Testibus  Hugone  archiepiscopo  Rothomagensi  Ricardo  cancellario, 
Reginaldo  de  Sancto  Wallerico,  Roberto  de  Novo  Burgo.  Apud 
Rothomagum. 

(See/tfj/,  Nos.  51-53-) 

■  Cart,  de  Baieux,  fol.  $,  No.  17.  'A  warren. 


392 


APPENDIX. 


No.  45.] 
CONFIRMATION  OF  THE  DUKE  OF  NORMANDY  OF 
THE  RETURN  OF  A  RECOGNITION.' 

Dux  Normannire  et  comes  Andcgavorum  Raginaldus  de  Sancto 
Walcrico,  Willelmo  de  Vernone,  Roberto  de  Novoburgo,  et  omnibus 
et  proceribus  suis  Normannice,  salutem.  Sciatls  quod  ego  concede  et 
confirmo  ecclesie  Sancte  Marie  Bajocensis  et  Philippo  episcopo,  et 
omnibus  successoribus  ejus  omnes  terras  et  consuetudines  quas  Odo 
episcopus  liabuit  in  episcopatu  Bajocensi,  et  nominatim  tcrram  de 
Carchenneio"  et  terram  de  Wolleia/  sicut  recognitum  I'uit  et  juratum, 
in  choro  Bajocensis  ecclesie  quod  predictus  Odo  eas  habuerat  in 
dominio.  Astantibus  ibidem  per  preceptum  nostrum  ad  hoc  audi- 
endum  Roberto  de  Curceio  dapifero  nostro,  Ricardo  de  Haia  et 
aliis  quampluribus.  Testibus  Hugone  Rothomagensi  archiepiscopo 
Ricardo  cancellario  nostro,  Raginaldo  de  Sancto  Walerico,  Roberto 
de  Novoburgo,  apud  Rothomagum. 


No.  46.] 

ANOTHER   WRIT    BY   THE    SAME,    REQUIRING   A 
RECOGNITION.^ 

Dux  Normannorum  et  comes  Andegavensium  Thomse  de  Bohun, 
salutem.  Mando  tibi  et  precipio  quod  dimittas  episcopo  Bajocensi 
in  pace  feudum  militis  quod  Robertus  Marin  de  ipso  tenebat  Witenill. 
Et  feudum  suum  quod  Willelmus  de  Bohun  deipso  apud  Monimartin 
tenere  debet,  quod  hucusque  injuste  occupasti.  Quod  nisi  feceris, 
precipio  quod  justitia  mea  R.  de  Haia  secundum  assisiam  meam 
recognosci  faciat  predictum  feodum  episcopi  quomodo  antecessores 
sui  tenuerunt  tempore  regis  Henrici,  et  sicut  recognitum  fuerit  ita 
cpiscopum  in  pace  tenere  faciat.  Quia  ego  non  paterer  quod  de 
jure  suo  injuste  perderet  tibi  etiam  Ricarde  la  Haia  precipio  quod 
per  totam  bailiam  tuam  secundum  assisiam  meam  recognosci  facias 
feudum  episcopi  Bajocensis  et  ipsum  in  pace  tenere  sicut  recog- 
nitum fuerit  secundum  assisiam  meam.  Test.  Pagan  .  .  .  Apud 
Cenomanum. 

'  Carl,  do  Baicux,  fol.  6,  No.  19.  "  Caicagni.  ■''  Vouilly. 

^  Cart,  de  Baicux,  fol.  7,  No.  24. 


CART^   ET   PLACITA.  393 

No.  47.] 

WRIT  OF  THE   DUKE   OF  NORMANDY  AND  EARL  OF 
ANJOU  REQUIRING  A  RECOGNITION.' 

Dux  Normnnnorum  ct  comes  Andegavorum  G.  de  Sablcio  ct 
R.  de  Curceio  justiciis  suis.  IMando  vobis  quod  sine  mora  recog- 
nosci  fociatis  secundum  assisiam  mcam  de  feodo  Guilclmi  Bersic  et 
dc  servitio  ejusdem,  (juis  indc  saisitus  erat  tempore  regis  Henrici  ct 
si  recognitum  fuerit  quod  c])iscopus  Baiocensis  inde  saisitus  esset 
vivente  rege  Henrico,  ci  habere  ct  tenere  in  pace  facialis.  Prcterea 
vobis  mando  quod  recognosci  facialis  secundum  assisiam  mcam  de 
terra  Crasmesnil  et  de  Rocliencort  quis  inde  saisitus  erat  tempore 
regis  Henrici  et  si  recognitum  fuerit  quod  Guaquelinus  de  Corceliis 
inde  saisitus  esset  eo  tempore,  ei  in  pace  tenere  faciatis.  Et  pro- 
hibete  Roberto  filio  Erneis  nc  aliquid  ei  forifaciat  necque  sui  homines. 
Et  si  Robertus  filius  Erneis  sive  sui  homines  aliquid  inde  ceperint 
postquam  precepi  in  Epiphania  Domini  quod  terra  esset  in  pace 
donee  juraretur,  cujus  deberet  esse  reddi  faciatis.  Teste  T.  P.  de 
Clarvall,  apud  Cenomanum. 


No.  48.] 
WRIT  OF  HENRY  II.   REQUIRING  A  RECOGNITION.^ 

Henricus  rex  Anglian  et  dux  Normannorum  et  Aquitanorum  et 
comes  Andegavorum  Willelmo  filio  Johannis,  salutem.  Pra^cipio 
tibi  quod  facias  recognosci  p;er  antiquos  homines  Cadomi  quot  et 
quarum  domorum  in  Cadomo  episcopi  Baiocensis  solebant  habere 
censum  et  redditus  tempore  Henrici  regis  avi  mei,  et  que  servitia  et 
quales  consuetudines  inde  tunc  habebant,  et  sicut  fuerat  recognitum, 
ita  in  pace  et  juste  et  integre  eas  facias  habere  Philippo  episcopo 
Bajocensi  et  plenum  rectum  ei  faciat  de  terra  ubi  grangire  .  .  .  .  ^ 
episcopi  esse  solebant,  secundum  assisiam  meam,  et  plenum  ei  f:icias 
rectum  de  terra  arabili  cjue  est  juxta  nquam  secundum  assisam 
meam,  et  plenum  rectum  ei  facias  de  decimis  .  .  .  .  ^  et  lane 
feciorum  de  Cadomo  secundum  assisam  meam.  Et  nisi  fecerit, 
Robertus  de  Novoburgo  faciat.  Teste  Toma  cancellario  apud 
Lemoviam. 

'  Cart,  de  Baicux,  fol.  7,  No.  25.  '  lb.  fol.  8,  No.  27.  ^  Indistinct. 


394  APPENDIX. 

No.  49.] 

CONFIRMATION  BY  HENRY  II.   OF  THE   RETURN   OF 
A   RECOGNITION.' 

Henricus  rex  Anglise  et  dux  Normannomm  et  Aquitanise  et 
comes  Andegavorum  R.  de  Novoburgo  et  omnibus  ballivis  suis 
Normannise,  salutem.  Precipio  quod  faciatis  Philippum  episcopum 
Baiocensem  tenere  banlewan  suam  de  Cambremario,  et  omnes  con- 
suetudines  suas  ita  bene  et  in  pace  et  libere  et  juste  et  plenarie, 
sicut  recognitum  fuit  coram  nobis  et  coram  Roberto  de  Curceio, 
ex  precepto  patris  mei  per  sacramentum  legalium  hominum,  et  sicut 
carte  regis  Henrici  avi  mei  et  comitis  Gaufridi  patris  mei  et  nostra, 
in  quorum  praesentia  hoc  factum  est,  testantur,  et  sicut  postea  per 
litteras  meas  precepi.  Et  si  quis  ejus  consuetudines  in  aliquo 
diminuere  voluerit,  firmam  ei  justitiam  sine  dilatione  faciatis.  Teste 
G.  de  Lond.  apud  Wudestocam. 


No.  50.] 

CONFIRMATION   BY   HENRY   II.    OF   A   CONCORD.-^ 

Henricus  rex  Angliae  et  dux  Normannorum  et  Aquitanise  et 
comes  Andegavorum,  archiepiscopo  et  episcopis  et  justiciariis  et 
baronibus  et  ministris  suis  totius  Normannia?,  salutem.  Sciatis  quod 
ego  concede  et  carta  mea  presenti  confirmo  compositionem  illam  que 
facta  fuerit  coram  me  inter  Philippum  Bajocensem  episcopum  et 
Philippum  de  Columbariis  de  morte  Beatricis  neptis  predicti  epis- 
copi  quam  Robertus  nepos  Philippi  de  Columbariis  interfecerat. 
Hanc  videlicet  quod  Philippus  de  Columbariis  predictum  Robertum 
abjuravit,  et  pacem  firmam  episcopo  Bajocensi  et  Willelmo  Britoni 
et  toti  cognation!  eorum  juravit.  Prseterea  ecclesiam  de  Colum- 
bariis cum  duabus  garbis  et  tercia  et  aliis  pertinentiis  ejus  cuidam 
prebende  Bajocensis  ecclesie  pro  anima  Beatricis  predicte  et  pro 
restauratione  dapni  quam  eidem  prebende  fecerat,  in  perpetuam 
eleemosinam  dedit  et  concessit.  .  .  .  ^  Quare  volo  et  firmiter  precipio 
quod  hec  compositio  firmiter  et  discusse  teneatur.  Testibus  Thoma 
cancellario,  Rogerio  archidiacono,  Richardo  de  Husneto  Constan- 
tiense.     Apud  Leones. 

'  Carl,  de  Baieux,  fol.  8,  No.  32.  ^  lb.  No,  33.  3  Indistinct. 


CARTyE    ET   PLACITA.  395 

No.  51.] 
CHARTER  OF  THE  DUKE  OF  NORMANDY  AS  TO  A 
RECOGNITION.' 

Dux  Nonnannorum  ct  comes  Andegavorum  Hugoni  Dei  gratia 
Rothomagensi  archiepiscopo  et  omnibus  episcopis  Normannie  et 
omnibus  baronibus,  salutcm.  Christianorum  principum  est  sua 
ecclesiis  jura  inconcussa  illibataque  conservare.  Et  si  aliquatenus 
fuerunt  improborum  hominum  vexatione  lurbata  vel  imminuta,  ad 
pristinum  sue  rectitudinis  statum  quantocius  revocare.  Eapropter 
quod  Baiocensis  ecclesia  post  tcmpora  Odonis  episcopi  multa  de  jure 
suo  perdiderat  per  subsequcntium  cpiscoporum  incuriam  qui  minus 
in  conservando  vigiles  extiterunt,  nos  predicte  ecclesie  in  oppres- 
sionibus  suis  compatientes,  juramento  antiquorum  et  legitimorum 
hominum  qui  rem  noverant,  fecimus  recognosci  jura,  possessiones, 
consuetudines,  libertates  supradicte  ecclesie  quascumque  habuerat  in 
tempore  Odonis  episcopi.  Vestigiis  regis  Henrici  inherentcs,  qui 
hoc  idem  juramento  antiquorum  hominum  fecerat  recognosci  post 
mortem  Ricardi  episcopi  filii  Samsonis,  cujus  factum  bone  memorie 
Lucius  et  Eugenius  papae  approbantes,  donationes,  venditiones,  com- 
mutationes  ab  omnibus  episcopis  factas  post  Odonem  episcopum 
usque  ad  Phih'ppum  cassaverunt,  et  irritas  esse  preceperunt,  nos 
igituv  predictorum  patrum  nostrorum  Lucii  pape  et  Eugenii  litteris 
commoniti  et  precibus  PhiUppi  Baiocensis  episcopi  compulsi  jura- 
mentum  quod  rex  Henricus  fieri  fecerat  ratum  esse  volentes :  jura- 
mento eorumdem  qui  tempore  regis  Henrici  juraverunt,  et  aliorum 
recognosci  fecimus  jura,  possessiones,  consuetudines,  libertates  quas 
ecclesia  Baiocensis  tempore  Odonis  episcopi  habuerat  et  habere 
debebat.  Recognita  est  igitur  inter  cetera  leugata  de  Cambremerio 
apud  Falesiam  coram  Roberto  de  Novoburgo  et  coram  Roberto  de 
Curceio  justiciariis  meis,  juramento  antiquorum  et  legitimorum 
hominum  (]ui  subscripti  sunt.  Juramento  itaque  hominum  de  terra 
Roberti  de  Monteforte,  scilicet  Ricardi  de  Warlammont  et  Ricardi  de 
Altaribus,  et  de  terra  abbatis  de  Sancto  Petro  supra  Divam,  Ricardi 
filii  Milonis,  Rogeri  filii  Odonis,  Hugo  Taissun.  .  .  .-  Recognita 
est  leugata  et  consuetudines  et  emende  et  termini  quibus  leuga  con- 
tinetur.  Juraverunt  itaque  predicti  homines  quod  episcopus  Baio- 
censis habet  et  habere  debet  et  quod  Ricardus  episcopus  filius 
Samsonis  habuerat  in  tempore  regis  Henrici  de  hominibus  omnibus 

'  Cart,  de  Baieux,  fol.  10,  No.  39.  In  connection  with  the  following  three 
records,  see  No.  44,  anie.  '  Et  al. 


396  APPENDIX. 

infra  terminos  manentibus  statum  theloneum  de  omni  emptione  et 
venditione  infra  terminos  facta  ex  consuetudine,  nee  non  et  telonii 
non  rcdditi  ct  sanguinis  ibidem  fiicti  constitutam  emcndara.  Jura- 
verunt  etiam  quod  licebat  preposito  cpiscopi  per  omnes  terras  infra 
terminos  leugate  justitiam  suam  libere  exercere.  Termini  autem 
leugate  hii  sunt  :  incipit  autem  a  petra  de  Houtemaine  et  distenditur 
usc^ue  in  Algot  fluvium,'  .  .  .  Ca^terorum  maneriorum  occupa- 
tiones  jurate  sunt  Bajocis  coram  Ricardo  de  Haia  et  Roberto  de 
Novo  Burgo  et  Roberto  de  Curceio  et  coram  Engelgero  de  Bohone  a 
nobis  ad  hoc  faciendum  transmissis,  congregatis  ad  hoc  jurandum  de 
singuhs  maneriis  plurimis  antic^uis  et  legitimis  hominibus  quorum 
juramento  ita  omnino  recognitum  est  sicut  continebatur  in  scripto 
quod  factum  fuerat  secundum  juramentum  quod  rex  Henricus  antea 
fieri  preceperat.  .  .  .  Omnia  itaque  hec  et  cetera  quecumque  de 
jure  Bajocensis  ecclesie  ablata  sunt  precipimus  ad  jus  ecclesie 
predicte  et  in  potestate  episcoporum  de  cetero  firmiter  inconcusse 
permanere.  Testibus  Ricardo  cancellario,  Roberto  de  Novo  Burgo, 
Roberto  de  Curceio,  comite  Ebroicense,  Amauricio  de  Maistenone, 
Gaufrido  de  Cleis,  Gufero  de  Brueria. 

No,  52.] 

RETURN   OF  THE  FOREGOING  RECOGNITION. 

The  following  is  the  return  of  Robert  de  Curceio  {scmhle\  one  of 
the  parties  who  took  the  recognition  :  '^ 

Duci  Normannorum  et  comiti  Andegavensium  karissimo  domino 
5U0  Robertus  de  Curceio  et  Robertus  de  Novoburgo,  salutem.  Notum 
facimus  vobis,  quod  sicut  precepistis ;  leugatem  de  Cambremerio 
fecimus  recognosci  per  juramentum  antiquorum  et  legitimorum 
hominum  in  confinio  manentium,  sicut  melius  fuerat  tempore  regis 
Willelmi  prioris,  Et  sicut  postea  melius  fuerat  tempore  regis  Henrici 
et  episcopi  Baiocensis  Ricardi  filii  Sansonis.  Et  ut  cercius  res  ad 
notitiam  veniret  plures  quam  in  ceteris  rebus  soleamus  juratores  et 
de  terris  diversorum  baronum  apud  Falesiam  in  ecclesia  beati 
Gervasii  in  presentia  mea  convenire  et  jurare  fecimus.  Juramento 
igitur  corum  (|ui  se  hoc  vidisse  et  audisse  et  novisse  testabantur, 
quorum  etiam  quidam  servientes  ejustem  leugatoi  tempore  regis 
Henrici  exercuerunt ;  recognitum  fuit  predictam  Icugatam  subscriptis 

'  Here  follow  the  boundaries.     Sec  pp.  397,  398. 
-  Cart,  de  Baicux,  fol.  11,  No.  43. 


CARTiE   ET   TLACITA.  397 

terminis  extendi  et  contineri,  et  omncs  infra  lerminos  manentes 
episcopo  Baiocensi  tempore  regis  Henrici  ex  consuetudine  reddidisse 
de  omni  emptione  et  venditione  infra  terminos  facta  teloneum  statu- 
tum,  et  tclonei  non  rcdditi  emendam.  Similiter  et  sanguinis  ibidem 
facti  emendam.  Licebat  etiam  preposito  episcopi  per  omnes  terras 
infra  terminos  justitiam  suam  libere  facere.  Termini  autem  infra 
quos  leuga  continetur,  isti  sunt.  Incipit  enim  a  petra  de  Howe- 
mainne,  et  extenditur  usque  in  Allegot  fluvium,  et  deinde  sicut 
Alegot  dcscendit  donee  cadat  in  Viam  fluvium.  Abhinc  vero  sicut 
Via  flumen  discurrit  ;  usque  dum  Oreta  aqua'  in  earn  labitur. 
Subinde  Oreta  leugatum  claudit  sicut  descendit  a  vado  Sancti 
Germani  de  Livet.'  Et  inde  distentur' leuga  per  domum  Ricardi 
Garct  usque  ad  Cutam''  de  Manerba,  abhinc  autem  per  medium 
Grattepanche  pretenditur  ad  petram  de  Howmainne  unde  incipit. 
Juratores  autem  isti  fuerunt.  De  terra  abbatis  de  Sancto  Petro- 
supra-Divam,  Ricardus  filius  Milonis,  Rogerus  filius  Odonis,  Hugo 

Taissun ;  de  terra  Rogeri  de  Gowiz,  Robertus  de  Howmainne ; 

de  terra  Roberti  Marmium  que  est  de  feodo  comitis  de  INIellent, 
Gocelinus  Warin ;  de  terra  Roberti  de  Monteforti,  Ricardus  de 
Warlaimont,  et  Ricardus  de  Altaribus;3  de  terra  Simonis  de 
Bosviila/  Gauterus  Britto,  Robertus  filius  Milonis,  Willelmus  de 
Brueria,  Radulfus  de  Luto,  Ricardus  Parvus  ;  de  terra  Rogeri  de 
Grattepanche,  Ricardus  Durum  Scutum?  cognomcnto,  Hugo  filius 
Ricardi ;  de  terra  Gauteri  de  Pinu,  Ricardus  Verroil ;  de  terra 
Hugonis  de  Crevecor,  Ricardus  de  Fraisneto.^  Retulerunt  etiam 
isti  coram  nobis  nominatas  ibidem  quas  viderant  justitias  et  emendas. 
Testibus  Willelmo  de  JNIontpichun,  Radulfo  de  Corlibove,  Aitardo 
Ponti,  Willelmo  de  Olvilla,  Willelmo  B.,  Gilleberto  de  Bigart. 


No.  53.] 

SAME   CONTINUED. 

Return  {semhle)  of  Robert  of  Newburg.? 

Duci  Normannorum  et  comiti  Andegavensium  Robertus  de 
Novoburgo  et  Robertus  de  Curceio,  salutem.  Nos  fecimus  jurari 
secundum   preceptum    vestrum    leugatam    de   Cambremerio    apud 

'  The  little  river  Dorette.  -  1  3  Distenditur.  •»  La  Cutle. 

5  Des  Authieux.  ^  Benviliiers?  ^  Durt-cu.  ^  Fresne-cn-aiige. 

'>  Cart,  dc  Baicux,  fol.  II  b,  No.  44. 


398  APPENDIX. 

Falesiam  quam   juraverunt  decern    et  octo  homines  niagne  etatis. 
Ricardus  de  Altaribus  de  feodo  Manerbe,  de  feodo  abbatis  de  Sancto 

Petro-supra-Divam    Rogerus    filius    Odonis,    Hugo   Taissun, 

Ricardus  filius  Milonis ;  de  terra  Simonis  de  Bosvilla,  Gauterus 
Brito,  Radulfus  de  Luto,  Ricardus  Parvus,  Robertus  filius  Milonis, 
Willelmus  de  Brueria ;  de  feodo  Rogeri  de  Grattepanche,  Ricardus 
Durum  Scutum,  Hugo  Planius,  de  feodo  Rogeri  de  Gowiz,  Robertus 
Howtemainne,  Gosselinus  Varin ;  de  feodo  Hugonis  de  Crevecor, 
Ricardus  de  Fraisneto ;  de  feodo  Gauteri  de  Pinu,  Ricardus  Veroil ; 
de  feodo  Roberti  de  Monteforti,  Ricardus  de  Warlemont ;  de 
feodo  Roberti  Marmium,  Gosselinus  Varin.  Qui  post  juramen- 
tum  suum  confessi  sunt  quod  viderunt  earn  habere  Ricardo  filio 
Samsonis  Bajocensi  episcopo  in  tempore  Henrici  regis  in  justitiam  de 
teloneo  et  sanguine  per  omnes  terras  qui  sunt  infra  terminos  leuge. 
Termini  autem  leuge  hii  sunt :  a  lapide  de  Houtemainna  usque  ad 
AUegot  fluvium,  et  inde  eo  usque  idem  fluvius  cadit  in  Viani  fluvium. 
Et  inde  usque  ad  pontem  de  Corbun,  et  ab  hoc  ponte  quidquid 
Oreta  fluvius  ambit,  usque  ad  eum  locum  in  quo  rivulus  de  domo 
Ricardi  de  Alneto  cadit  in  eamdem  Oretam.  Inde  ad  domum 
Ricardi  Garet,  et  inde  ad  Cutam  Pinoldi,  et  inde  ad  petram  de 
Howmainna,  aqua  incipit.  Juraverunt  etiam  warandam  infra  istos 
terminos  esse  intra  epi.  tm.' 


No.  54.] 

RETURN    OF    A    RECOGNITION,    REPORTED    TO    THE 
DUKE   OF  NORMANDY. -^ 

Duci  Normannise  et  comiti  Andegavorum  G.  comes  Mellent 
uti  karo  domino.  Sciatis  quod  precepto  vestro  fecimus  recognosci 
per  sacramentum  legitimorum  vicinorum  quid  et  qualiter  episcopus 
Lexoviensis  et  episcopus  Bajocensis  tenebant  tenuras  suas  in  Espivilla 
tempore  regis  Henrici,  et  recognitum  esse  quod  unusquisque  habet 
dimidiam  villam  in  feodo,  et  ecclesia  tota  et  atrium  est  in  feodo 
episcopi  Baiocensis,  et  ejus  esse  ecclesiam  predictam  dare  et  sacer- 
dotem  ponere  sicut  illam  de  qua  ipse  est  episcopus  et  sacerdos,  et 
qui  de  dono  ejus  ecclesiam  habebit,  plenariam  decimam  de  utroque 
feodo  habere  debet.     Et  idem  sacerdos  nullam  obedientiam  episcopo 

'  Episcopatum  ?  ^  Cart,  de  Baieux,  fol.  25,  No.  88. 


CART.E    ET    PLACITA.  399 

Lexoviensi  facere  debet.  Tanien  crisma  de  ipso  accipiet  sine  num- 
moriim  datione,  ad  sinodum  suam  ibit  precepla  tantum  auditurus 
non  aliquid  redditurus,  vel  de  aliquo  placito  responsurus.  Et  in 
eadem  villa  homines  Baiocensis  episcopi  soli  Baiocensi  episcopo 
respondebunt  de  placitis  episcopalibus.  Homines  vero  Lexoviai 
quamvis  ibi  sint  parochiani  episcopi  Baiocensis  tamen  de  placitis 
episcopalibus  respondebunt :  soli  Lexovienses  denarium  Pentecostes 
reddent  homines  Baiocensis  episcopi  apud  Lexoviam.  Sola  prece 
non  emenda  coacta. 


No.  55.]  A  SIMILAR   RECORD.- 


Dei  gratia  duci  Normannia3  et  comiti  Andegavensi.  R.  de  Sancto 
Walerico  uti  karo  domino,  salutem.  Sciatis  quod  precepto  vestro 
fecimus  recognosci  per  sacramentuni  legitimorum  vicinorum  quid  et 
quomodo  et  qualiter  et  episcopus  Lexoviensis  et  episcopus  Baiocensis 
tenebant  tenuras  suas  in  Esprevall.  Et  in  episcopali  et  in  terrena 
potestate  tempore  regis  Henrici  et  recognitum  est  quod  unusquisque 
illorum  habet  dimidietateni  villse  illius  in  feodo,  et  quod  ecclesia  tota 
et  atrium  est  in  feodo  episcopi  Baiocensis,  et  est  ejus  predictamecclesiam 
dare,  et  sacerdotem  in  ea  ponere,  sicut  illam  de  qua  ipse  est  et  epis- 
copus et  terrenus  advocatus,  et  sacerdos  qui  de  dono  ejus  ecclesiam 
illam  habebit,  plenariam  decimam  de  utriusque  feodo  habere  debet.  Et 
idem  sacerdos  nuUam  obedientiani  episcopo  Lexoviensi  facere  debet. 
Scilicet  tamen  chrisma  de  ipso  accipiet  sine  datione  nummorum,  et 
ad  sinodum  suam  ibit,  precepta  tamen  auditurus  xe\-  de  aliquo  placito 
responsurus.  Sicut  sacerdos  Lexoviensis  episcopi  de  Nunant  accipit 
chrisma  de  episcopo  Bajocensi  et  ad  sinodum  suam  vadit,  nichil 
tamen  dabit  vel  de  aliquo  placito  episcopo  Baiocensi  respondebit. 
Et  in  eadem  villa  homines  Baiocensis  episcopi  soli  Baiocensi  episcopo 
respondebunt  de  placitis  episcopalibus.  Homines  vero  Lexoviensis 
episcopi  quamvis  sint  ibi  parochiani  episcopi  Bajocensis,  tamen  de 
placitis  episcopalibus  respondebunt  soli  episcopo  Lexoviensi.  Dena- 
rium Penticostes  reddent  homines  Baiocensis  episcopi  apud  Lexoviam. 
Sola  prece  non  emenda  coacta. 

'  Cart,  de  Baieux,  fol.  25,  No.  89.  »  Nee? 


400  APPENDIX. 

No.  56.] 

DE   TERMING   SANCTI    HILLARII   ANNO   VII. °     REGNI 

REGIS    HENRICI    PRIS.    ["  patris."      Regularly,    "  domini 

regis  "  should  follow].* 

Huntingdonscira  ss.  Philippus  monachus  habeat  breve  ad 
vicecomitem  quod  prohibeat  Reginaldo  monacho  ne  teneat  placitum 
de  terra  unde  idem  Philippus  questus  est  in  curia  domini  regis 
quod  Reginaldus  monachus  non  vult  recipere  homagium  suum. 

SS.  Philippus  monachus  essoniavit  se  primo  [die]  de  infirmitate 
veniendi  versus  Reginaldum  monachum  de  placito  et  de  homagio 
ejusdem  terra  et  de  quodam  vidia  terre  de  Torp  per  Willelmum  filium 
Nicholai  de  Grafham  in  xv.  dies  post  festum  apostolorum  Philippi 
et  Jacobi  pleg~  essoh  fides. 

'  Coram  Rege  Roll,  Michaelmas,  9  John,  No.  33  (Al.  40),  membrane  8. 
The  record,  now  printed  for  the  first  time,  which  follows  this  title,  is  found  in  the 
Rolls  of  the  King's  Court,  precisely  as  here  given  (except  that  it  is  written  with 
contractions),  without  explanation.  It  shows  that  the  practice  of  enrolment,  as 
seen  in  the  Rotuli  Curia;  Regis  and  in  the  Placitorum  Abbreviatio,  or  rather  in 
the  original  rolls  from  which  those  books  are  printed,  was  in  use  long  before  the 
printed  rolls  began,  and  at  least  as  early  as  7  lien.  II.  We  are  safe  in  inferring 
that  enrolment  of  placita  was  one  of  the  reforms  instituted  upon  the  accession  of 
Henry  the  Second,  in  accordance  with  the  promise  of  the  peace  of  Wallingford. 
Nor  is  this  all.  The  record  itself  exhibits  the  King's  Court,  as  early  as  the  year 
1 160,  issuing  an  "injunction"  to  a  suitor  in  a  Manorial  Court  from  proceeding 
with  a  cause  begun  therein ;  a  perfect  example  of  the  equitable  power  of  the  King's 
Court.  See  ante,  pp.  192,  196.  The  record  affords  still  another  suggestion.  The 
proceeding  corresponds,  so  far  as  it  goes,  -with  the  process  of  the  Magna  Assisa. 
The  demandant  sues  for  the  land  in  question  in  the  local  court,  and  the  record 
shows  the  tenant,  as  would  be  done  after  putting  himself  upon  the  Magna  Assisa, 
obtaining  a  writ  to  ]Dr-event  further  proceedings  there  ;  the  case  being  now  drawn 
into  the  King's  Court.  If  this  suggestion  should  jDrove  well  founded,  the  record 
would  go  to  confirm  the  intimation  of  the  text,  ante,  p.  175.  n.,  that  the  Magna  Assisa 
was  also  one  of  the  reforms  effected  by  virtue  of  the  terms  of  the  peace  of  Walling- 
ford. The  record,  however,  is  equally  capable  of  the  explanation  that  the  tenant 
had  merely  obtained,  for  a  price,  a  change  of  forum  of  the  litigation. 

The  roll  above  fpioted  by  the  scribe  of  9  John  is  followed  by  others  of  later 
date  ;  and  it  would  not  be  strange  if  a  thorough  examination  of  the  unpublished 
rolls  should  reveal  still  earlier  transcripts  than  the  one  above  given,  and  aid  in 
the  answer  of  important  questions.  Enrolment  in  the  Exchequer,  it  may  be 
added,  was  another  thing;  relating  to  fiscal  matters.  That  was  perfect  as  early  as 
31  Ilen.  I.     Ante,  pp.  94,  123. 


INDEX. 


2    D 


INDEX. 


Accusation  ;  to  be  in  writing  in  clerical 
causes  on  the  Continent,  57,  n.  7  ; 
by  public  voice,  58,  99-101,  277,  297, 

307,  323- 
Accusator ;     in     ecclesiastical     causes, 

57,  58. 
Actions  ;    forms  of   not    derived   from 

writ,  147,  148,   196,    197,  247,  248  ; 

possessory  and  petitory,  172-175. 
Adam's  Case ;    trial  of  vice-chancellor 

for  treason,  43. 
Adscriptitii ;  seizure  of  their  goods  for 

debts  of  their  lords,  119. 
Adultery  ;  jurisdiction  as  to,  50. 
Agenda  of  1 194  ;  138-141. 
Ailward's  Case  ;  214-216,  290. 
Alan  de  Neville  ;  146. 
Albigenses  ;  trial  of,  61-63. 
Algarum  Maris  ;  80. 
Amercements  ;  examples  of,  240-243  ; 

for  false  clamor,  341. 
Angles  ;  nearness  to  Danes,  9. 
Anglo-Saxon  Procedure  ;  continuation 

of  in  Norman  period,  1-3,  et passim. 
Antecessor;  meaning  of,  177,  n.  2. 
Antejuramentum  ;  248-250. 
Apparitor  ;  80,  n.  3. 
Appeals  ;    in  clerical  causes,    69,    70  ; 
accusation  of  crime    or  delict,   276, 


296,   297  ;   other  cases,    297,    327- 

330- 
Appearance  ;  failure  of  after  summons, 

219,  223,  237-240,  34S,  349. 
Approver  ;  proceedings  in  appeals  by, 

328-330- 
Archdeacon ;  holds  the  bishop's  court, 

57. 
Argument  of   Causes ;  when  possible, 

57,  n.  5. 
Assise  ;  see  Inquisition,  Recognition. 
Assise  of  Clarendon  ;  2,  99-101,  297, 

323- 
Assise  of  Northampton  ;  2,  88,  297,  323. 
Attorney ;    giving   suit   over   to,    224, 

227,  245. 
Aula  Regis  ;  successor  of,  3,  76,  79,  199. 
Auxilium  ;  124. 


Barones  errantes  ;  137. 

Baronies  ;    treatment   in  Exchequer  of 

holders  of,  120,  121 ;  see  Franchises. 
Barons  ;  name  in  Exchequer,  112. 
Battle  ;  see  Duel. 
Becket,    Thomas   a ;    connection   with 

Constitutions  of  Clarendon,  34-39. 
Bench,  The  ;  89,  90. 
Blanch-ferm  ;  106. 


404 


INDEX, 


Boroughs  :  certain  ones  retain  ancient 
usage  of  compurgation,  2,  296,  307  ; 
five  Danish,  12. 

Bribery;    Norse   action   for,    313,    n., 

314- 
Broc,  Philip  de  ;  38,  39. 
Buakvidr  ;  l8,  n.,  311-316,  331,  332. 
Burden   of   Proof ;    follows   last   good 

pleading,  60-63,  272,  289,  291,  292- 

295- 
Burghmot  ;     corresponds     to     County 

Court,  141. 


Capitula  Placitorum  Coron;i3  ;  138-141. 

Case,  Action  on  the  ;  198. 

Castellatio  trium  Scannorum  ;  80. 

Chamberlain  ;  in  Exchequer,  107. 

Champions  ;  252-254. 

Chancellor  ;  his  position  in  the  kingdom, 
87,  90 ;  in  Exchequer,  107,  loS. 

Chancery ;  no  court  of  in  the  Norman 
period,  19 ;  equity  in  the  general 
courts,  19,  20,  53,  129,  193-195  ;  in 
the  clerical  courts,  42,  71,  72  ;  early 
jurisdiction  of  the  Chancery,  72,  n.  i. 

Chanson  de  Roland  ;  330,  n.,  347,  n. 

Charters ;  trial  by,  in  Ecclesiastical 
Courts,  60,  66-68  ;  in  lay  courts, 
298,  316-318;  matter  for  the  judges, 
316  ;  contesting,  317,  318. 

Chaucer  ;  opinion  of  summoners,  225. 

Chester  ;  held  by  the  Danes,  12. 

Common  Pleas ;  court  of,  85  ;  in 
Exchequer,  86,  91,  1 25-131. 

Community-Witness ;  120,  295,  29S, 
309,  310. 

Competency  ;  of  compurgators,  301, 
302  ;  of  witnesses,  308. 

Compurgation ;  effect  of  Assises  of 
Clarendon  and  Northampton,  2  ;  in 
Iceland,  17,  314,  315  ;  in  clerical 
courts,  57,  59  ;  iri  what  cases  allowed 
in  lay  courts,  297,  298,  306-308 ; 
nature  of  trial  by,  301-308  ;  number 
of  compurgators,  301,  305,  306  ; 
what  they  swore  to,  301  ;  selection 
of,  302,  303  ;  kinds  of  oath  used, 
303>  304  ;  how  sworn,  304,  305  ;  lex 
disraisinic,  304  ;  lex  probabilis,  305  ; 
compurgation  shifts  ground  in  twelfth 


century,  306-308  ;  in  cases  of  debt, 

308 ;  in  actions  against  sureties,  308. 

Conditional  Mandate  ;  153,  n.  2,    155, 

n.  2. 
Constable  ;  position  in  Exchequer,  109. 
Constitutions  of  Clarendon  ;  34-37- 
Contracts ;    breach   of  not   to    be   re- 
dressed in  Ecclesiastical  Court,  37. 
Contumacy  ;  punished  by  outlawry  in 
secular  courts,  348  ;  in  Ecclesiastical 
Courts,  349,  n. 
Conventiones  ;   122. 
Coroners  ;    origin   of,    131,    139,    140  ; 
coroner's  inquest  not  of  Norse  origin, 
334,  n. 
Corsnced  ;  ordeal  for  the  clergy,  59,  65. 
Costs  ;  Synod  of  Winchester  as  to,  37. 
Council,    King's ;     see   King's    Court, 

Witenagemot. 
County  Court  ;  before  and  after  the 
Conquest,  131  ;  sheriffs  in,  131  ; 
dignity  of,  132 ;  used  by  the  king, 
132,  133;  membership,  133;  repre- 
sentation in,  133,  134,  137  ;  sessions, 
how  often,  135 ;  jurisdiction,  135, 
136;  Eyre,  136-141;  record  of,  319, 
320. 
Courts  ;  chapter  vii.  p.  19  ;  no  Court  of 
Chancery,  19  ;  the  king  in  equity, 
19  ;  Witenagemot,  20  ;  Ecclesiastical 
Court,  25  ;  King's  Court,  75  ;  Eyre, 
92  ;  Exchequer,  103  ;  County  Court, 
131  ;  Burghmot,  141  ;  Hundred  or 
Wapentake,  141  ;  Manorial  Court, 
143  ;  Forest  Court,  144. 
Crimen  falsi  ;  81. 

Criminal  Actions ;  how  begun,  248- 
254  ;  pleadings  in,  277-281  ;  burden 
of  proof,  292,  293  ;  judgment  in,  346, 

347- 
Crowland,  Chronicle  of;  154,  n. 


Damages  ;  in  case  of  disseisin,  345,  346. 
Danegeld  ;  118. 
Danelag  ;  chapter  ii.  p.  8. 
Danes  ;  in  England,  10-14. 
Danish-Norse    Procedure  ;    chapter   ii. 

p.  Z,  passim-,  Norse,  224-228,   311- 

316. 
Debt  ;    writs  of,    160-165  !    history  of 


INDEX. 


405 


modern  wril,  165  ;  pleading  in,  2IS1, 
282  ;  compurgalion  in,  30S  ;  judg- 
ment in,  346,  347. 

Decennaries  ;   142. 

Defamation  ;  jurisdiction  as  to,  51. 

De])ositions  ;  in  clerical  causes,  65,  66  ; 
in  lay  causes,  310. 

Derby  ;  earlier  name,  1 1,  n. 

Detinue  ;  pleading  in,  2S3. 

Diligence  ;  as  an  answer  by  the  sheriff 
in  Exchequer,  115. 

Diocesan  Councils  ;  28, 

Disseisin  ;  see  Novel  Disseisin. 

Distraint  ;  distinguishes  actions  of  con- 
tract and  actions  of  tort,  201  ;  in 
Normandy,  201,  n.  ;  substantive  dis- 
traint, 202  ;  auxiliary  distraint,  201, 

202  ;  modern  private  distraint  not 
archaic,    202,   203 ;    leave   of  court, 

203  ;  Continental  law  as  to,  203-205  ; 
distraint  before  the  Conquest,  205  ; 
(e//i/>.  Hen.  I.  206,  207 ;  origin  of 
modern  private  distraint  suggested, 
207,  n.  ;  h'm/>.  Glanvill,  208,  209  ; 
preliminaries  to,  209-211  ;  necessity 
of  observing  formalities,  211,  212; 
proceedings  for  the  recovery  of 
movables,  212  ;  hue  and  cry,  212  ; 
"  harou,"  212,  n. ;  search  of  premises, 
213;  putting  the  hand  upon  goods, 
213,  214;  "ligare,"  214;  replevin 
of  distraint,  219-222. 

Divorce  ;  Norse  procedure  as  to,  226. 

Domesday  Book  ;  129,  293. 

Dower  ;  difference  between  English 
and  Norman  procedure  as  to,  5  ;  how 
causes  tried  before  the  Conquest,  5,  n. ; 
jurisdiction  as  to,  82,  84  ;  count  for, 
255.  256  ;  pleadings,  256,  257. 

Dowry ;  Mord's  demand  of  return  of, 
224,  225. 

Duel ;  gains  ground  U'm/>.  Hen.  I.  2  ; 
hire  of  champions,  4  ;  general  use  on 
Continent,  6 ;  opposition  of  clergy 
to,  68,  69,  n. ;  proceeding?  in  trial 
by,  252,  256,  328-330  ;  in  what  cases 
allowed,  295,  296,  327;  exemption  of 
certain  boroughs  from,  296 ;  intro- 
duced from  Normandy,  327 ;  en- 
croaches upon  ordeal,  327  ;  proceed- 
ings in  appeal  by  approver,  328,  330. 


Ecclesiastical  Court ;  main  object  of, 
25  ;  confusion  as  to  court,  25  27  ; 
peculiar  punishments  of,  26,  n. ;  ir- 
regular jurisdiction,  27,  28;  Diocesan 
Councils,  28 ;  how  courts  held,  29  ; 
jurisdiction  of  spiritual  causes,  29  ; 
presence  of  king  and  laity,  29,  30  ; 
clergy  in  temporal  courts,  30,  31  ; 
Conqueror's  charter  as  to  jurisdiction, 
30,  31  ;  extension  of  jurisdiction, 
32  ;  exercise  of  jurisdiction  specially 
examined,  33-55  ;  Constitutions  of 
Clarendon,  34-37  ;  as  a  court  of 
equity,  42  ;  mixed  jurisdiction,  53- 
55  ;  procedure  in  Ecclesiastical 
Courts,  55-69 ;  petitory  and  possessory 
actions,  55,  n.;  Vacarius  at  Oxford, 
55>  56;  "  ordo  judiciarius,"  56; 
summons,  56;  archdeacon  holds  court, 
57 ;  judges  chosen,  57 ;  modes  of 
trial,  63-69  ;  appeals,  69,  70  ; 
punishments,  70,  71  ;  relation  to  lay 
courts,  71-75  ;  practice  as  to  final 
judgments,  341-344. 

Englishry  j  81,  241-243. 

Enrolment  ;  early  use  of,  '319,  n.,  App. 
No.  56. 

Entr)^,  Wiitof;  history,  165,  166. 

Equity  ;  in  the  general  courts,  19,  20  ; 
in  ecclesiastical  court,  42,  71,  72  ;  in 
King's  Court,  53,  195  ;  in  Exchequer, 

129,  193.  194- 

Errantes  Justitiii; ;  136. 

Escheat  ;  of  an  honour,  102,  n.  2  ;  ac- 
counting for  in  Exchequer,  118;  in 
Eyre,  138,  140. 

Essarts ;  118,  146. 

Essoins ;  of  sheriff  in  Exchequer,  117, 
1 18  ;  hearing  of,  230  ;  examples,  231, 
240 ;  number  allowed,  237  ;  how 
ended,  237,  238 ;  in  King's  Court, 
238-240  ;  in  recognitions,  239,  240  ; 
proof  of,  305,  306. 

Evidence  ;  burden  of  proof,  60-63,  272, 
2S9,  291,  293-29^  ;  production  of, 
2S8-300  ;  competency  of  compurga- 
tors, 301,  302;  of  witnesses,  308. 

Exchequer;  common  pleas  heard  in,  85, 
86,  91,  125-131  ;  in  counties,  98  ; 
work  of  Roger  of  Salisbury,  103  ; 
predecessor  of  Exchequer,  103-105  ; 


4o6 


IxNDEX. 


early  monetary  system,  104-106 ; 
meaning  of  Exchequer,  106  ;  Ex- 
chequer table,  106  ;  tallies,  107  ;  mem- 
bership, 107-112;  peculiarity  of 
procedure,  113;  mode  of  same,  113, 
114;  how  differs  from  procedure  of 
King's  Court,  115,  116  ;  evasion  of 
taxes,  116,  117;  essoins  of  sheriff, 
117,  118;  levy  on  property  for  debt 
to  the  Crown,  119,  120;  treatment 
of  great  men,  debtors,  120-122 ; 
relation  of  Exchequer  to  other  courts, 
122-126 ;  interrupted  in  Stephen's 
reign,  128  ;  equity  in,  129. 
Eyre  ;  early  iters,  92,  93  ;  regular  sys- 
tem in  31  Hen,  I.  94  ;  renewed  by 
Hen.  n.  after  anarchy  of  Stephen,  94; 
fiscal  and  judicial  Eyres,  94-96  ;  fre- 
quent changes  of  judges,  95,  96 ; 
inquisition  process,  97,  98  ;  business 
of  Eyre,  98,  138-141  ;  an  Exchequer, 
98  ;  relation  to  Folkmot,  102  ;  at- 
tendance, 103  ;  distinguished  from 
ancient  Shiremot,  1 36-141  ;  discon- 
tinued in  vStephen's  reign,  136. 


False  Judgment ;    meaning    of,     298 ; 

procedure    in    cases   of,    299  ;    how 

defended,  299,  300. 
Perm  ;    accounting   for  in   Exchequer, 

118. 
Fiction  ;   jurisdiction   of  King's    Court 

aided  by,  85  ;  so  later  of  Exchequer, 

85,  86. 
Final  Judgment ;  chapter  x.  p.  341. 
Fines  and  Concords  ;  redress  of  breach 

of,  82. 
Five  Danish  Burghs  ;  12. 
Folkmot ;  see  County  Court,   Hundred 

Court,  Manorial  Court. 
Fore-oath  ;  248-250. 
Forest   Court;    by   whom   held,    144; 

jurisdiction,  144,  145  ;  a  kind  of  Ex- 
chequer,    145  ;   procedure    in,    145  ; 

complaint  as  to,  145,    146 ;  office  of 

forester  in  de  Neville  family,  146. 
Forms  of  Action  ;  growth  of,  147,  148, 

196,  247. 
FormuI:T!;  rhythmic  language,  246,  247; 

examples  of,  249-256. 


Forum  ;  "  actor  forum  rei  sequi  debet," 
219,  n. 

Franchises ;  opened  to  the  sheriffs  and  jus- 
ticiars, 101,200;  exemption  from  geld, 
305 ;  see  Baronies,  Manorial  Court. 

Frankpledge  ;  142,  143. 

Fugitives  ;  history  of  writ  as  to,  168, 
169. 


Ganelon,  Case  of;  287,  n.,  330,  n. 
Geld  ;  see  Exchequer,  Franchises. 
Godi ;  power  of  in  the  tolftarkvidr,  332, 

333- 
"Good  Summoners";  224,  225,  n. 
Grand  Assise  ;  unanimity  in,  5  ;  origin 

of  in  England  suggested,  175,  n.  2, 

App.  No.  56,  n.  ;  when  granted,  178  ; 

proceedings  under,  269,  273,  295. 
Grand  Jury  ;  under  Assise  of  Clarendon, 

99,  100,   278,  323  ;   presentment  by, 

292,  293  ;  returns  of,  293. 
Great  Council ;  see  King's  Court,  Wite- 

nagemot. 


Hallvard's  Case  ;  332,  333. 

Harou ;  212,  n. 

Henry  of  Essex's  Case  ;  290. 

Henry  the   Second  ;  fear  of  the  pope, 

43,    44 ;    his   reforms   as   to   clerical 

jurisdiction  summarised,  52. 
Homage  ;  jurisdiction  of,  82. 
Homicide  ;  Norse  procedure  as  to,  226- 

228  ;  pledges  not  received,  278,  n. 
Hord  ;  succeeded  by  what,  106. 
Hostages;  347. 
Hot  Iron  Ordeal ;  326. 
Hubert    de    Burgh ;     the   lasi   of    the 

ancient  justiciars,  90,  n. 
Hue  and  Cry;  212. 
Hundred  Court  ;  how  often  held,  141  ; 

attendance,    141,    142 ;    jurisdiction, 

142  ;  judges   in,    142  ;   frankpledge, 

142  ;  Sheriffs  Tourn,  142. 
Huon  de  Bordeaux  ;  347,  n. 
Husting  ;  14,  141. 


Icelandic  Procedure  ;  chapter  ii. /^jjzVw, 
224-228,  311-316;  compurgation 
under,  17,  315. 


INDEX. 


407 


Illicit  Intercourse;  jurisdiction  as  to,  50. 

Inferior  Courts  ;  record  of,  319,  320. 

Ingulfs  Chronicle  of  Crowland  ;  154,  n. 

Injunction  ;  writs  in  the  nature  of,  129. 

Inquest;  Norse,  18,  31 1-316; coroner's, 
334,  n. 

Inquisition;  in  the  popular  courts,  3  ; 
not  in  use  in  England  before  the 
Conquest,  3  ;  in  the  Ecclesiastical 
Courts,  60  ;  distinguished  from  recog- 
nition, 175,  n.  4,  335  ;  comparison 
with  Norse  inquests,  331-334. 

Intestate  Property;  jurisdiction  as  to,  52. 

Iron,  Hot ;  ordeal  of,  326. 

Issue  Term  ;  chapter  vii.  p.  229. 

Itinerant  Justiciars  ;  92-103  ;  see  Eyre. 


Jews;  139,  140. 

Judgment ;  at  the  issue  term,  2S3-287  ; 
confession  of,  283,  284  ;  by  default, 
285,  286  ;  on  questions  submitted  to 
the  judges,  286,  287;  false  judgment, 
299,  300 ;  dividing  the  Norse  court, 
313,  n.;    final  judgment,    chapter  x. 

p.  341. 
Judices  et  Juratores  ;  134. 
Jurata  ;     earliest     mention     of,      125  ; 

whether  in  general  use  temp.  Hen.  II. 

337-340 ;  nature   of,    337  ;  difficulty 

as  to,  338. 
Jurisdiction  ;  Conqueror's  charter  as  to, 

30-33,  72,  n.  4,  App.  No.  I  ;  see  the 

various  courts. 
Jury  ;  foreshadowed,  64,  n.  ;  Norse  in- 
quests, 331-334;  origin  of  jury,  334- 

337. 

Justice,  Sale  of;  155,  156,  187-190, 
198,  n. 

Justices  in  Eyre  ;  137. 

Justiciar  ;  position  in  the  kingdom,  87  ; 
loses  rank,  87,  90 :  position  in  Ex- 
chequer, 107. 


King  ;  a  judge  in  equity,  ly. 

King's  Council ;  the  Great  Council,  19- 

25,  90  ;  smaller  council  of  latter  part 

of  twelfth  century,  87-91. 
King's  Court ;    what   it  succeeded,  3  ; 

procedure  of  contrasted  with  that  of 


popular  courts,  3  ;  a  disturbing  in- 
lluence,  75 ;  how  jurisdiction  ex- 
tended, 75-86  ;  not  a  committee  of 
the  Great  Council,  75,  76 ;  use  of 
writs  of  prrecipe,  77,  78  ;  criminal 
jurisdiction/^;;//.  Glanvill,  81  ;  juris- 
diction of  scuffles,  blows,  and  wounds, 
81,  82,  84,  85  ;  civil  jurisdiction,  82  ; 
membership,  86  ;  special  court  of  five 
members  created,  87,  88  ;  revisory 
authority  over,  88,  89  ;  division  of 
the  kingdom  into  four  circuits,  89  ; 
Bench,  89,  90  ;  smaller  body  a  com- 
mittee, 89,  90;  King's  Council,  89- 

91  ;  smaller  body  attended  the  king, 

92  ;  inconvenience  thereof,  92  ;  Eyre, 
92-103;  jurisdiction  completed,  loi. 

King's  Hand;  taking  property  into,  221. 


Law  of  the  Land  ;  155,  n.  3. 

Laws  of  Edward  Confessor  ;   16. 

Laws  of  Henry  I.  ;   15. 

Leet;  144,  n.  2. 

Liber  Wintonius  ;  129. 

Ligare ;  214-216. 

Lincoln  ;  exemption  from  duel,  296. 

London  ;  exemption  from  duel,  296. 

Longchamp  ;  becomes  both  chancellor 
and  justiciar,  87,  90  ;  increased  im- 
portance of  chancellor  under,  87,  n.,  90. 

Lord  and  Man  ;  mode  of  trial  between, 
250,  251,  298,  n. 

Lucrandum  vel  perdendum  :  224,  227, 
245- 


Magna  Assisa  ;  unanimity  in,  5  ;  origin 
in  England  suggested,  175,  n.  2, 
App.  No.  56,  n.  ;  when  granted,  178  ; 
proceedings  under,  269-273,  295. 

Magnum  Concilium  ;  see  King's  Court, 
Witenagemot. 

Mandate,  Conditional;  153,  n.  2,  155, 
n.  2. 

Manorial  Court ;  rank  of  Hundred,  143  ; 
sometimes  independent  of  Shiremot, 
143;  from  what  derived,  144;  crimi- 
nal jurisdiction,  144;  great  franchises, 
144 ;  see  Franchises. 

Manors  ;  144. 


4o8 


INDEX. 


Marriage  ;  jurisdiction  of  questions  re- 
lating to,  50. 

Marshal ;  position  in  lixchequer,  109, 
no,   121. 

Matilda's  Case  ;  63,  64. 

Mayhem ;  making  proof  as  maimed 
man,  250,  n.  3,  252,  297. 

Medial  judgment  ;  in  ecclesiastical 
causes,  59 ;  chapter  viii.  p.  288. 

Minuti  Homines  ;  134. 

Miskenning ;  57,  246. 

Money;  in  eleventh  and  twelfth  cen- 
turies, 104,  105  ;  clipping,  105  ; 
testing,  106  ;  blanch-ferm,  106. 

Mord  ;  demands  return  of  dowry,  224. 

Mord  V.  Flosi ;  227,  228,  311-315. 

Movables  ;  search  for,  212,  214  ;  actions 
for  recovery  of,  213,  214. 

Murdrum:  81,  1 18,  240-243. 


Ne  injuste  vexes ;  history  of  writ,  166-16S 

Neville,  Alan  de  ;  146. 

Nisi  feceris  Clause  ;  79,  83,  84. 

Njal  ;  224,  225,  314. 

Norman  Records  ;  value  of  as  evidence 

concerning  procedure  in  England,  4-6. 
Norse    Procedure ;    chapter    ii.    p.    8, 

passim,  224-228,  311-316. 
Northweorthig ;     name     changed      to 

Deoraby,  11,  n. 
Novel  Disseisin  ;  history  of  writ,  169- 

183  ;  change  of  procedure  in  use  of, 

172-174  ;    principle  of  action,    175, 

176;    applicable  to  movables,    179; 

damages  for,  345,  346. 


Oath  ;  formulae  of,  249,  250  ;  kinds  of, 
303,  304  ;  how  sworn,  304. 

Oblata  in  Rem  ;  122. 

Oblata  in  Spem  ;  122. 

Oblata  spontanea  ;   122. 

Obsides ;  347. 

Ordeal ;  decline  of,  2,  322,  323  ;  use  of 
in  ecclesiastical  causes,  59,  60,  65  ; 
in  lay  causes,  297  ;  nature  of  trial 
by,  322;  loss  of  ground,  322,  323; 
Assises  of  Clarendon  and  Northamp- 
ton as  to,  323  ;  discontinuance  of, 
323,   324 ;   effect  of  this,  323  ;  peine 


forte  et  dure,  324  ;  forms  of  ordeal, 
325  ;    ceremonials,  325,  326. 

Ordo  judiciarius  ;  56,  57. 

Outlawry  ;  a  last  resort,  348  ;  punish- 
ment for  contumacy,  348  ;  extended 
to  after-born  children  temp.  Edw. 
Conf.  348,  n.  4  ;  not  to  prior-born, 
348,  n.  4 ;  how  effected,  348,  349 ; 
wolf's  head,  349,  n. 

Oxford;  perhaps  exempted  from  duel, 
296;  Vacariusat,  55,  56,  173,  174. 

Oxford,  Provisions  of ;   197,  198. 


Party-Witness  ;  see  Witnesses. 

Peine  forte  et  dure  ;  origin  of,  324,  325. 

Perlustrantes  Judices ;  137. 

Petitory  and  possessory  Actions  ;  adop- 
tion of,  172-175. 

Pipe  Roll;  94,  107. 

Placita;  meaning  of,  122,  128,  n. 

Placita  Corona; ;  240-246. 

Pleading  ;  in  Ecclesiastical  Courts,  60- 
63  ;  in  lay  courts,  246-287 ;  examples, 
254-285  ;  under  recognitions,  257- 
259  ;  in  real  i^roperty  causes,  254- 
275  ;  in  appeals  of  robbery,  276  ;  in 
trespass  de  bonis,  277 ;  in  high 
crimes,  277-281  ;  Norse  criminal 
formula;,  280,  281  ;  in  debt,  281, 
282  ;  in  detinue,  283 ;  difference 
between  ancient  and  modern  plead- 
ing, 291,  292. 

Pleas  of  Crown  ;  240-246. 

Pledges ;  requirement  of  in  litigation, 
229,  230,  258,  288,  329,  341  ;  judg- 
ment against,  347,  348, 

Possessory  and  Petitory  Actions  ;  adop- 
tion of,  172-175. 

Proecipe  Writs  ;  use  made  of,  77,  78,  ?>'r). 

Prerogative,  Royal ;  as  to  writs,  197  ; 
limited  by  Provisions  of  Oxford,  197, 
198. 

Presentments,  Criminal ;  99,  100,  278, 
292,  293,  323. 

Prima  facie  case  ;  how  made,  248-251. 

Probator ;    proceedings   in  appeal   by, 

328-330- 
Prohibition  ;  writ  of,  53. 
Promiscuous    Intercourse  ;    jurisdiction 

as  to,  50. 


INDEX. 


409 


Proof;  burden  of,  60-63,  272,  2S9,  291, 
293-295  ;  production  of,  2S8-300. 

Protection  ;  writs  of,  192-194. 

Provisions  of  Oxford  ;   197,  19S. 

Public  voice  ;  accusation  by,  58,  99- 
loi,  277,  297,  307,  323. 

Punishment;  in  clerical  courts,  70,  71. 

Purgation  ;  of  men  in  orders,  64,  65  : 
see  Compurgation,  Corsnred,  Ordeal. 

Purprestures ;  82,  ii8. 


Rape  ;  jurisdiction  as  to,  50,  80,  Si. 
Real  Property;  pleading  in  causes  of, 
254-275  ;  final  judgment  in  favour  of 
plaintiff,  341-346. 
Recognition  ;  known  to  popular  courts, 
3  ;  not  used  in  England  before  Con- 
quest, 3 ;  unanimity,  5  ;  in  Ecclesi- 
astical Courts,  60  ;  history  of  writs 
of,  1 70-191  ;  distinguished  from  in- 
quisition, 175,  n.  4;  procedure  in 
trial  by,  1 78,  229,  230 ;  applicable 
to  cases  of  movables,  179;  question 
of  priority  of  use  in  Normandy,  1S6; 
variance  iri  fees  paid  for,  187-190 ; 
regulation  of  form  of,  191  ;  effect  of 
pleadings,  230,  257-260  ;  essoins  in, 
239,  240 ;  number  of  men  in,  258, 
259 ;  ordinary  pleas  in,  260-262 ; 
examples  of  pleadings,  262-265 ; 
compared  with  Norse  inquest,  331- 
334  ;  original  of  modern  jury,  334- 
337 ;  natiire  of,  335 ;  recognitors 
might  inquire  as  to  facts,  335,  336. 

Record ;  trial  by  in  Ecclesiastical 
Court,  66;  meaning  of  term,  299,  n., 
319  ;  trial  by  in  lay  courts,  318-322  ; 
inferior  courts,  319  ;  examples  of 
trial  by,  32Q-322. 

Reforms  of  Hen.  II.  ;  52. 

Reliefs  ;  jurisdiction  of,  82. 

Replevin;  stress  laid  upon  right  of,  219; 
replevin  from  the  king's  hand,  221, 
342,  n. ;  canon  law  as  to,  221,  222, 
362. 

Representation  ;  in  the  County  Court, 
133,  134,  137  ;  in  the  Hundred,  141, 
142. 

Robbery  ;  pleading  in  appeals  of,  276. 

Roger  of    Salisbury  ;    reorganises  the 


Exchequer,  103,  105,  io5  ;  connec- 
tion with  King's  Court,  159,  n. ;  writ 
by,  161. 

Roll  of  Pipe  ;  94,  107. 

Roman  Law  ;  study  of  at  Oxford,  56  ; 
forbidden,  56,  n.  2. 

Rotulus  exactorius ;   118, 

Royal  Prerogative  ;  as  to  writs,  197  ; 
limitation  of,  197,  198. 


Sacramentum ;  frangens  or  fractum, 
303  ;  observatum,  303 ;  planum, 
303  ;  simplex,  303. 

St.  Edmundsbury  ;  exempted  from  duel, 
296. 

Sale  of  Justice ;  155,  156,  187-190, 
198,  n. 

Scutage  ;   liS. 

Seal;  impeachment  of,  294,  n.,  317, 
318. 

Search  ;  stolen  goods,  212,  213. 

Secta  ;  in  twelfth  century,  256,  257 
339,  340. 

Security  ;  requirement  of  in  litigation, 
229,  230,  28S,  2S9. 

Seisin  ;  trial  of  by  duel,  177,  n.  i,  296, 

Services  ;  writ  for  enforcement  of,  160- 
163  ;  loss  of  land  by  failure  to  per- 
form, 344, 

Sheriff's  Tourn  ;  142. 

Sheriffs  ;  as  fiscal  officers,  94-96  ;  re- 
moval of,  96,  97 ;  loss  of  judicial 
function,  99,  100,  131,  137,  n.,  140; 
accounting  in  Exchequer,  IIO-112; 
essoins  of,  117,  118;  holding  Eyre, 

136,  137- 

Shiremot ;  see  County  Court. 

Steplien,  King ;  summoned  before 
Ecclesiastical  Court,  33,  n.  3  ;  oath 
of  office,  33,  n.  7  ;  34,  n.  2  ;  exten- 
sion of  ecclesiastical  jurisdiction  in 
reign  of,  34. 

Stolen  Goods;  search  for,  212-214; 
proceedings  in  actions  for,  213,  214, 

.Streoneshalch  ;  name  changed  to 
Whitby,  II,  n. 

Summons  ;  in  Ecclesiastical  Court,  56  ; 
in  Exchequer,  114,  116,  118,  119, 
149;  ancient  mode,  147,217;  new 
mode,  148,  217,  218;  form  of  sum- 


2     E 


4IO 


INDEX. 


mons,  149,  150  ;  history  of  writs  of, 
1 69- 191  ;  general  summons,  217; 
what  time  allowed  for  appearance, 
218;  in  cases  of  divided  tenure,  218, 
219  ;  failure  to  appear,  219  ;  attorney 
to  receive,  222 ;  proof  of,  223  ; 
"good  summoners,"  223,  n.  4; 
formalism  as  to,  224  ;  Norse  sum- 
mons, 224-226 ;  in  Norse  divorce 
cases,  226  ;  in  Norse  homicide  cases, 
226-228, 

Sureties ;  requirement  of  in  litigation, 
229,  230,  258,  288,  329,  341  ;  pro- 
ceedings against,  30S ;  judgment 
against,  347,  348. 

Synod  ;  of  Winchester  as  to  costs,  37  ; 
synods  resembling  Witenagemots, 
44,  n.,  61. 


Tallies,  Exchequer;    107,  no,  114. 

Taxation  ;    see  Exchequer,  Franchises. 

Tenmannetale ;   142. 

Terminus  ;  238,  n. 

Teutonic  Procedure  ;  vitality  of,  11,  n. 

Theft  ;  hue  and  cry,  212  ;  search,  212, 

213. 
Thegn-men's   Court ;    successor  of,    3, 

76,  79,  199- 
Thieves;  hanging  of  forty-four,  24. 
Thing;  Norse  Court,  13. 
Tolftarkvidr  ;   18,  332-334. 
Townships ;   144. 
Treasurer  ;   107-122,  passim. 
Treasury  ;   103-105,  127. 
Trespass  ;  actions  for,  49  ;  jurisdiction 

of,  135,    136,  151  ;  writs  for  redress 

of,  159,  160;   pleadings  in,  277. 
Trial  Term  ;  chapter  ix.  p.  301. 
Trithing  ;    14. 
Tunscipesmot  ;   144,  n.  4. 


Unanimity  ;  in  recognitions  and  Grand 

Assise,  5,  259. 
Unna ;  suit  for  dowry,    224,   225  ;    for 

divorce,  225. 
Usher  ;  position  in  Exchequer,  1 12, 113. 
Usury;  jurisdiction  as  to,  51,  139. 


Vacarius ;  teaches  at  Oxford,  55,  56r 
1 73  ;  composes  nine  books  on  actions, 
55.56,  173;  teaching  stopped,  56,174, 

Vice-chancellor ;  not  a  judicial  officer, 

43.  n- 
Viga-Glum  Saga  ;  332,  333. 
Villenage  ;  136. 
Voucher  to  Warranty  ;  proceedings  in,. 

265-269. 


Wager  of  Battle  ;  see  Duel. 

Wager  of  Law  ;  see  Compurgation. 

Wallingford  ;  honour  of  opened  to- 
sherilTs,  loi  ;  peace  of,  174,  175,  n.,, 
App.  No.  56,  n, 

Waltheof's  Case  ;  23. 

Wapentake  ;   141-143. 

Warranty  ;  voucher  to,  265-269  ;  arose 
without  express  words,  268,  269. 

Water  Ordeal  ;  325. 

West-Saxons  ;  9. 

Whitby;  original  name,  11,  n. 

Wills  ;  jurisdiction  as  to,  51  ;  intro- 
duced by  church,  51  ;  whether  ambu- 
latory, 51,  n.  3. 

Winchester  ;  exempted  from  duel,  296. 

Winchester,  Synod  of;  as  to  costs,  37. 

Witenagemot  ;    in  Norman  period,    3, 

20  ;  in  Anglo-Saxon  period,  20 ;  other 
names  for,   20  ;  confusion  as  to,  20, 

21  ;  jurisdiction  of,  21-25  ?  ^^ot  a 
court  of  appeal,  22  ;  synods  re- 
sembling, 443,  n. 

Witnesses  ;  in  ecclesiastical  causes,  57, 
58,  60  ;  de  visit  et  atiditu,  251  ;  when 
not  required,  251  ;  champion-witness, 
252,  253;  trial  by,  298,  308-311,- 
loses  ground,  310;  what  sworn  to, 
308  ;  examination  of,  30S  ;  trial  by  in 
criminal  cases,  295,  309  ;  classes  of, 
309,310;  witnesses  of  rank  privileged, 
310;   chief  use  of,  310,  311. 

Wolf's  Head  ;    196,  349,  n. 

Women  ;  appeals  by,  252,  297. 

Writ  Process  ;  chapter  iv.  p.  147 ;  de- 
velopment of,  147  ;  did  not  originate 
modern  forms  of  action,  147,  196, 
247  ;  use  made  of,  151  ;  writs  of  com- 
mission, 151,152;  to  defendants,  152, 
153;  in    nature   of    execution    with- 


INDEX. 


411 


out  ju(l!;[ment,  153-156;  want  of  form 
in  early  writs,  156;  history  of  writs 
of  right,  157-168  ;  writ  of  trespass, 
159,  160;  writ  as  to  services,  160- 
163  ;  writ  of  debt  on  loan,  160-165  ; 
Avrit  of  entry,  165,  166 ;  writ  ne 
injuste  vexes,  166-168 ;  writ  as  to 
fugitives,  168,  169 ;  writs  for  recog- 
nitions, 1 69- 1 86;  writ  of  novel  dis- 
seisin, 171-186;  Magna  Assisa,  175, 
n.  2  (see  Magna  Assisa) ;  fees  for 
having  writs,    187-189;    conclusions 


as  to  growth  of  writ  process,  191  ; 
writs  of  protection,  192-194 ;  writs 
in  nature  of  injunction,  194-196 ; 
conclusions  as  to  use  of  writs,  196- 
200  ;  royal  prerogative  as  to,  197, 
198  ;  Provisions  of  Oxford,  198 ; 
Statute  of  Westminster  11.  198  ;  writs 
not  necessary  in  Folkmots  and  Eyre, 
273-275. 

York  ;  held  by  the  Danes,  12. 


THE    END. 


CHARLES  DICKENS  AND  EVANS,  CRVSTAI.  PALACE  PRESS. 


